Erastus Cornelius Benedict.

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

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No. 198.— Exceptions bt a dbfendaitt to the bbpobt of the clebk ob a

COMMISSIONEB.

United States District Court.
Ramak De Zaldo

ads,
Elisha Bubgess.

The respondent hereby excepts to the report of the commissioner made here-
in, and by him this day filed, for the following causes, that is to say —

First, Because the said commissioner hath not in his said report allowed as
a credit to him, the said respondent, the sum of twenty-five dollars, duly paid
to Captain Farnham, by him the said respondent, as appears by the testimony
taken in this cause.

Second. Because the said commissioner has not, in his said report, allowed
as a credit to him, tlie said respondent, the sum of one hundred and six dollars
and seventy-five cents, duly paid to Captain Farnham, by the agent and con-
signee of this respondent, at Havana, in the island of Cuba, as appears by the
like testimony.
March 6th, 1844. Edoab Looan, Proctor for Respondent.

A. D. LooAN, Advocate.



No. 199.— A DiLATOBY EXCEPTION TO A LIBEL. — (Vide ante, page 266.)



No. 200.— A PEBEMPTOBY EXCEPTION TO A LIBEL. — Vide ante, page 266.)



No. 200 a.— Exceptions to a libel fob misjoinbeb.
United States District Court,

The Schooneb Naomi, etc., '

AND John W. Hall,

ads,

David J. Brown.

John W. Hall, the respondent, excepts to the libel in this cause for this:
First, That it misjoins in the same cause a suit in rem against the schooner
Naomi, and a suit in personam against John W. Hall, the master thereof.
Second, That it misjoins an alleged cause of action against the vessel for a



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PRACTICAL FORMS. 609

violation of a charter parly, and also an alleged cause of s^^tion against John
W. Hall» for the appropriating certain property by the said Jolm W. Hall.

Third, That it misjoins parties who cannot be rightfully joined in such a suit,
and misjoins causes of action which cannot be rightfully joined in such a suit

C. L. Brkkdict, Proctor.

E. C. Bknbdict, Advocate.



No. 201. — ^Exceptions to ait answbb fob scakdal and mpsBTmsNOB.
District Court cf the United States,

EBENEZBB N. niKCKLET>

vs.

David H. Robertson.
Exceptions taken by the libellantto the answer of David H. Robertson, respond-
ent in this cause.

First Exception, For that the allegations in the said answer, in the words
following, to wit: ** That during the time the libellant was at Antwerp, the
captain of one of the deponent^s vessels, the Henry Kneeland, at Antwerp, the
same time as the libellant, wrote to respondent, advising him as follows: *I
very much fear the voyage of the Majestic will turn out even worse than the
Kneeland^ 6, having met with an accident on her voyage; the ship is yet here,
but ought to have been gone hence at least a week ago. Her commander is
one of the last men that ought to be entrusted with the command of a ship; I
have every reason for saying so, and feel it my duty to apprise you of it, and
if not fully insured would recommend being so, as I think the ship not safe
under the present command; and it is the opinion of the masters of ships here
that I should apprise you of it; he is never seen about the ship, and appears to
have lost himself altogether;* " are scandalous and impertinent, and ought to
be expunged.

/Second Exception, For that the allegations in the said answer immediately
following the matter quoted in the first exception, that is to say, ** That depo-
nent is informed and believes the libellant^s neglect of duty was notorious at
Antwerp at the time, and respondent was constantly informed of the same by
persons subsequently arriving from that place,'* are scandalous and impertinent,
and ought to be expunged.

Third Exception, For that the allegation in the said answer, in the words
following, to wit: "That, as the respondent is Informed and believes, at the
time the Majestic was loading at Newport, the agent of the cargo, before a
notary public, protested against the libellant's incapacity and negligence," is
impertinent and ought to be expunged.

Fourth Exception, For that the allegation in the said answer, in the words
following, to wit: "Tliat the vessels owned by respondent, which sailed with
the same orders as libellant* s, and were at Antwerp at the same time, made
good voyages, and arrived at tliis port in the spring of the year, and have since
proceeded on other voyages," is impertinent and ought to be expunged.

In all which pailiculars the said libellant humbly insists that the respondent's
said answer is irrelevant, impertinent, and scandalous ; wherefore the libellant
excepts thereto, and humbly prays that the impertinence and scandal of the
said answer excepted to as aforesaid may be expunged with costs.

BxjBB <fe Benedict, Proctors for Libellant.
Bubb, Advocate.
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610 APPENDIX.

No. 202.— ExcEPnoiTS to an answeb for iitsufficiehct.

]>i8trict Court of the United States.
Ramon de Zaldo
vs.
The Bbio Axdebaban, her tackle, [

ETC., AND EbENEZER WhEBLRIOUT.

Exceptions taken by the libellant to the answer of Ebenezer Wheelright, respond-
ent, to the libel and complaint of the said Ramon de Zaldo, filed in this cause.
First Exception, For that the said respondent has not well and sufficiently
answered and set forth whether the agent of the libellant made and entered in-
to an agi'eement with the said George C. Prior, as master and agent for the
owners of said brig, on or about the twenty-sixth day of October, 1844, that the
said brig should proceed to and take in a cargo at the port of Havana, and tha.
the libellant or his agent should pay therefor the sum of one hundred dollars
in addition to the compensation mentioned in the charter party; and whether
the sum of one hundred dollars was paid in pursuance of said agi*eement by this
libellant's agent to the said master, as is alleged by the libellant* s libel on file,
in article 4th, page 5, lines 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 19.

Second Exception. For that the said respondent has not well and sufficiently
answered and set forth whether, in pursuance of the last mentioned agreement,
the said brig set sail from Cienf uegos to Havana, as is alleged in the libellant'&
libel, on file, in article 5th, page 5, lines 28, 29, and 30.

In all which particulars the said answer of the said respondent is imperfect,
insufficient, and evasive, and the libellant therefore excepts thereto, and prays
that the said respondent may put in a further and better answer to the said libel.

J. B. PuBBOY, Proctor for the Libellant.
Nath'l F. Waring, Advocate.



No. 203. — Exceptions to intebboqatobies to a pabty ob oabnishbb.
District Court qf the United States,



A.B. )

vs. \

CD. )



C.

Exceptions to the interrogatories addressed to the libellant [or defendant, or

E. F., garnishee.]

Firnt. The said libellant [ or defendant, or garnishee] excepts to the fourth
interrogatory, for the reason that the answer thereto will expose him to a pros-
ecution for a penalty, and he is not by law obliged to answer the same.

Second. He excepts to the seventh interrogatory, for the reason that it only

inquires in lelation to hearsay and the declarations of third persons, which are

not competent evidence.

E. F., Proctor and Advocate for Libellants, etc



No. 204.— Exceptions to answebs of a pabty ob oabnishee to intebbooa-

TOBIES.

District Court of the United States,



A.B. )

vs. >

CD. )



Exceptions to the answers of the libellant [or the defendant, or E. F., garnishee]
to the interrogatories addressed to him.



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PRACTICAL FORMS. 611

First The defendant [or libellant, or garnishee] excepts to the answer to the
first interrogatoi7, for the reason that instead of answering the interrogatory,
fully, directly, and positively, it answers the same evasively and indirectly, so
far as it does answer the same, and omits wholly to answer how long the said
defendant was confined in irons in the hold of said brig.

Second. He excepts to the answer to the fifth interrogatory, for the reason
that said answer is impertinent and scandalous.

£. F., Proctor and Advocate for Defendant, etc.



No. 205. — ^Exceptions to a dkposition de bene esse.

United States District Court,

TflOMAs Davis ant> others ^

vs, >

Fbakcis Hathaway et ax. )

Sirs: — You will please to take notice that we object to the deposition of
Charles E. Prescott, taken ex parte de bene e««e, in this cause, because —

First, It was not sealed up nor kept by the magistrate, nor delivered by him
into court, according to law, but the contrary appears.
Second, It is without date or jurat.

Third, It is not accompanied by the proper certificate of the commissioner.
Fourth, The witness was not properly cautioned and sworn.
^ Fifth, There is no evidence of the reasons for taking the deposition, or of the
facts that rendered it proper or necessary to take it.

Sixth, It is impossible to tell which deposition the certificate of the commis-
sioner refers to.

Seventh, The certificate appears not to have been given at the time of the
taking of the deposition, but a long period afterwards; and it does not appear
whether the facts certified relate to the time of the taking the one deposition
or the other, or of the certificate.
Dated Dec. 16th, 1842.

Yours, etc.,

Burr A Benedict,

Proctors for Libellants.
To Daioel Lord, Esq., and
Oborob B. Butler, Esq.,

Proctors for Defendants.



No. 206. — ^NOTICE OF MOTION TO SUPPRESS DEP08ITI0K.

United States VUtHct Court.

John Doe

vs.

Bark Helen.

Sir: — Please take notice that we shall move this court at the court room in

the Federal Building, in the city of New York, on the day of

180 , at 11 o'clock a. m., or as soon thereafter as counsel can be heard, for an

order suppressing the deposition of L. S., taken at the city of Chicago, on the

day of 189 , on behalf of the libellant herein, on the ground



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612 APPENDIX.

that no proper or timely notice of the taking of such deposition was serred
upon us, or for such other relief as shall be just.

Dated New York, 189 . Yours, etc.

A. and B., Proctors for Claimant.

To C. D., Esq., Proctor for Libellant.



No. 207. — ImiCSBOGATOBIES PBOPOUin>KD TO A PABTT.

(If the interrogatories are annexed to a pleading^ let them follow immediaUly
after the signatures and jurat to tJie pleading, with the following caption:)

Interrogatories propounded to the defendant [or the libellant], which he is re-
quired to answer in writing, under oath.

{If the interrogatories are propounded independently cf any pleading, let them
he entitled in the cause as follows:)

District CouH cf the United States.
A. B.



vs. >
3. D. )



Interrogatories propounded to the libellant [or the defendant], which he is re-
quired to answer in writing, under oath.

First Interrogatory, What was thQ date of the arrival of the said ship M. Howes,
at Londonderry ? And when did she arrive at the usual place of discharge in
said port ?

Second, How soon after the arrival of said ship at such port, did the master
notify the consignees of said ship of his arrival ?

Third. How soon after such arrival was the discharge of the cargo commenced ?
Why was it not commenced sooner ? When was the vessel fully discharged ? On
what days was any part of the cai*go discharged ? How much was discharged
on each of those days respectively ? During how many days, or parts thereof,
was the weather so stormy or bad as to render the cargo liable to damage, if de-
livered ? When did the vessel leave the said port, on her return voyage ? Wby
did she not leave sooner ?

Fourth, Was not a part of the cargo in a damaged state on arrival, and if yea,
how much ? Were not two hundred bushels of com and upwards, so damaged ?
Was not such damage owing to the master or persons in charge of her, having
stowed the quantity so damaged in bulk, instead of in bags, as required by the
agreement between the libellants and defendants, and by the bill of lading ?

Fifth. Were there not some disputes between the said consignees and the said
master in relation to said damaged cargo and the freight, and if yea, were not
the disputes submitted to arbitration ? What were the subjects which were sub-
mitted to arbitration, and what was the award ?

Sixth, Where was the master of said vessel when she wa^ ready for sea, and
if he was not at Londonderry, how soon after she was ready for sea did he re-
turn to Londonderry ? Was the said master at Londonderry each and every day
from the time said vessel arrived at said port, till she left on her return voyage f
And if you answer in the negative, state particularly on what day or days, and
what parts thereof, he was absent during the said time.

Seventh, Were you not aware, at the time the agreement to him was made,



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PRACTICAL FORMS. 613

that the defendants were acting as agents, and who they were acting for, and
that the defendants were not the principals in the charter. *

S. L. M. Bablow,

Proctor for Defendants.
New York, June 26, 1840.



B.^
D.)



No. 208. - AN8WBR8 BY A PARTY TO INTEBBOGATOBIES.

DiMirici Court cf tJie UniUd States.
A. B.

C.

Answers of A. B., libellant [or of C. D., defendant], to the interrogatories pro-
pounded to him in this cause.
To the first inteiTogatory, he says, etc.
(Tfie answer must be signed by the party answering , and be sworn to as follows :)
Southern District of New York, ss, :

A. B., the foregoing respondent, being sworn, says — That the foregoing an^
swers subscribed by him are true.

A. B.
Sworn January 4, 1850, before me,
Geoboe W. Mobton,

U. S. Commissioner.



No. 209. — Prkpabatoby intebbooatories in prize cases.

Standing interrogatories to be administered by a prize commission to all persons
that may be produced as witnesses to be examined in preparatorio, in relation
to any ship or vessel, goods, wares, or merchandise, which may be captured
or taken as prize and brought into the Southern District of New York.
Let each witness be interrogated to every of the following questions, and

their answers to each interrogatory be written down under his direction and

supervision:

1. Where were you bom, and where do you now live, and how long have you
lived there? Of what province or state are you a subject or citizen, and to
which do yon owe allegiance ? Are you a citizen of the United States of Amer-
ica? Are you a married man, and, if married, where do your family and wife
reside?

2. Were you present at the capture or taking of the vessel, or her lading, or
any of the goods or merchandises concerning which you are now examined ?

3. ^Vhen and where was such seizure and capture made, and into what place
or poili were tlie same carried ? Had the vessel so captured any commission, or
letters, authorizing her to make prizes ? What, and from whom ? For what
reasons or on what pretence was the seizui*e made ?

4. Under what colors did the captured vessel sail ? What other colors had
she on board, and for what reason had she such other colors ?

5. Was any resistance made at the time of the capture, and by whom ? Were
any guns fired, how many, and by whom? By what ship or ships was the
capture made ? Were any other, and what ships in sight at the time of the
capture? Was the vessel Ciiptured a merchantman, a ship-of-war, or acting



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614 APPENDIX.

under any commission as a privateer or letter of marque and reprisal, and to
whom did such vessel belong ? Was the capturing vessel a ship-of-war, a letter
of marque and reprisal, or privateer, and of v^hat force ?

6. Had the capturing vessel or vessels any commission to act in the seizure
or capture of the vessel inquii*ed about, and from whom, and by what particular
vessel was tiie capture made? Was the vessel seized, condemned, and if so,
when and wliere, and for what reason, and upon wliat account, and by whom,
and by what authority or tribunal was she condemned ?

7. What was the name of the vessel talcen, and of her master or commander ?
Wlio appointed him to the command of the said vessel, and where ? How long
have you known the vessel and him, and when and where did he take possession
of her, and wlio by name delivered the same to him ? Wliere is the fixed place
of abode of tiie master, with his wife and family, and how long has he lived
there ? If he has no fixed place of abode, whe^e was his last place of residence,
and how long did he live there? Where was he bom? Of what country or
state is he a subject or citizen ?

8. Of what tonnage or burden is the vessel which has been taken, and about
which you are examined ? What number of the vessel' s company belonged to her
at the time she was seized and taken, and how many were then actually on board
her ? What countrymen are they ? Did they all come on board at the same
port and time, or at different ports and times, and when and where ? Who
shipped or hired them, and when and where ?

9. Did you belong to the company of the vessel so captured, at the time of
her seizure, and in what capacity ? Had you, or any of the oflScers, or mariners,
or company, belonging to the said vessel at the time of her capture, any part,
share, or interest in the same, or in the goods or merchandise laden on board
her, and what in particular, and what was the value thereof at the time the
said vessel was captured, and the said goods seized?

10. How long have you known the said vessel ? When and where did you
first see her? How many guns did she carry ? How many men were on board
of her at the beginning of the engagement, before she was captured ? Of what
country build was she ? What was her name and how long was she so called ?
Whether do you know of any other name she was called by, and what were
such names, as you know or have heard ?

11. To what ports and places was the vessel, concerning which you are now
examined, bound on the voyage wherein she was taken and seized ? Where did
the voyage begin, and where was the voyage to have ended ? What sort of
lading did she carry at the time of her first setting out on the voyage, and what
particular sort of lading and goods had she on board at the time she was taken
and seized ? In what year and in what month was t)ie same put on board ? Do
you, or not, know she liad on board during her last voyage, and when, goods
contraband of war, or otherwise prohibited by law, and what goods?

12. Had the vessel of wJiich you are examined any passport or sea-brief on
board, and from whom ? To what ports or places did she sail during her last
voyage, before she was taken ? Where did her last voyage begin, and where
was it to have ended ? Set forth the kind of cargoes the vessel has carried to
the time of her capture, and at what ports such cargoes have been delivered.
Prom what ports, and at what time, particularly from the last clearing port,
did the said vessel sail, previously to the capture ?

13. What lading did tlie vessel carry at the time of her fii-st setting sail in her



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PRACTICAL FORMS. 615

last voyage, and what particular sort of lading and goods had she on board at
the time she was taken ? In what year and in what month was the same put
on board ? et forth the different species of the lading, and the 1[iuantities of
each soi*t.

14. Who were the owners of the vessel and goods, concerning which you are
now examined, at the time of their capture and seizure ? How do you know
they were owners thereof at that time ? Of what nation or country are they by
birth, and where do they live with their wives and families ? How long have
they resided there? Where did they reside previously, to the best of your
knowledge ? Of what country or state are they subjects or citizens ?

15. Was any bill of sale given, and by whom, to the owners of the said vessel,
and in what month and year ? Wliere, and in presence of what witnesses, was
it made ? Was any, and what engagement entered into concerning the purchase,
further than what appears upon the bill of sale 9 Where did you last see it,
and what has become of it ?

16. In what port or place, and in what month and year, was the lading found
on board the vessel, at the time of her capture or seizure, first put on board
her ? What were the names of the respective laders or owners, or consignees
thereof ? What countrymen are they ? Where did they reside before, to the best
of your knowledge, and where were the said goods to be delivered, and for whose
i*eal account, risk, or benefit ? Have any of the said laders or consignees any,
and what interest in the said goods ? What were the several qualities, quanti-
ties, and particulars of the said goods, and have you any, and what reason to
know or fully believe that if the said goods shall be restored and unladen at
the destined ports, they did, do, and will belong to the same persons, and to
none others ?

17. How many bills of lading were signed for the goods seized on board the
said vessel ? Were any of those bills of lading false or colorable, or were any
bills of lading signed which were dififerent in any respect from those which were
on boai*d the vessel at tlie time she was taken ? What were the contents of such
other bills of lading, and what became of them ?

18. Have you in your possession, or were there on board of the said vessel,
at the time of her capture, any bills of lading, invoices, letters or other writ-
ings, to prove or show your own interest, or the interest of any other person,
and of whom, in the vessel or in the goods concerning which you are now ex-
amined ? If in your power, produce the same, and set forth the particular
times when, where, and in what manner, and upon what consideration, you be-
came possessed thereof. If you cannot produce such paper evidences, then
state in whose possession you last saw them, or where you know or believe they
are kept, and when, and by whom they were brought or sent within this dis-
trict, and also set forth the contents or purport of such papers.

10. State the degrees of latitude and longitude in which the said vessel and
her cargo were captured, as also the year, month, and day, and time thereof, in
which such seizure was made, and in or near what port or place, and whether it
was a port of any State or Territory of the United States of America, and what
one. Was any charter party for the voyage upon which the said vessel was cap-
tured signed and executed, and by wltom, and when ? If in your possession,
produce the same. If not, set forth its contents and state what has become of it.

20. What papers, bills of lading, letters, or other writings relating to the ves-
sel or cargo, were on board the vessel at tlie time she took her depai'ture from



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616 APPENDIX.

hei last clearing port, before she was taken as prize ? Were any of them burnt,
torn, thrown overboard, destroyed or canceled, or attempted to be concealed,
and when, and by whom, and who was then present?

21. Did you or the owner, master, or person having command of the said ves-
sel or her navigation, at the time and place of her capture, know or have notice
that such place or port was in a state of war with the United States, and that
tlie naval forces of the United States held such port in a state of blockade ? How,
when, or where had you such knowledge or notice, and when and where did the
master or commandant obtain it?

22. Was such port under an oi*der of blockade by the Government of the
United States, at the time the said vessel entered or made an attempt to enter
tlie same ? Had warning or notice of such blockade been given to, or received
by the owner, master or commandant of said vessel, before or at the time she
entered, or attempted to enter the said port, and when, and in what manner ?
Had notice in writing been indorsed on the register or other ship^s papers of
the said vessel, and when, where, and by whom, of an existing blockade of such
port, before she entered, or attempted to enter the same, or before the time of
her sailing, or attempting to sail therefrom ?

23. Was the register of the vessel, about which you are examined, shown to,
or examined by any officer of the United States navy, or by any revenue officer
of tlie United States, before she was captured and taken, and before she entered
the port at, or near which, she was taken and seized, and was the register, or
other ship's papers, indorsed by said United States officer ? Declare fully all
you know, or have reason to believe, respecting this interrogatory, stating the



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 66 of 80)