Erastus Cornelius Benedict.

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

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of 18 . S

(Annex itemized bill or contract.)



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624 APPENDIX.

No. 221. — LETTEB8 BOOATORY,

United States qf America^ Department of State.

To all to whom these presents shall come, Greeting:

I certify that tlie document hereunto annexed is under the seal of the Depart*

ment of Justice of the United States; and is entitled to full faith and credit

In testimony whereof, I, John W. Foster, Secretary of

State of the United States, have hereunto subscribed my

name, and caused the seal of the Department of State to

[seal] be affixed.

Done at the city of Washington on tliis 4th day of October,
A. D. 1892, and of the Independence of the United States
of America the one hundred and seyenteenth.

John W. Fostek.

Department of Justice. >
Washington, D. C, October 4, 1892. S
I, William H. H. Miller, Attorney General of the United States, do hereby
certify that Addison Brown, whose name is signed to the accompanying papers,
is now, and was at the time of signing the same. United States District Judge
in and for the Southern District of New York.

In witness whereof, I have hereunto set my hand, and caused
[seal] the seal of the Department of Justice to be affixed, on the

day and year first above written.

W. H. H. Miller, Attorney General.

The President of the United States of America, to the Chief Justice and As-
sistant Justices of the Court of General Assize, being one of Her Britannic
Majesty^ s Courts of Judicature of the Bermuda Islands, at the town of Ham-
ilton, in the Islands of Bermuda, Greeting:

Whereas, there is now pending in our District Court of the United States for
the Southern District of New York, a certain suit in rem against three hundred
and thirteen barrels of whiskey, wherein the United States of America is Hbel-
lant and Nathan Hofheimer is claimant (a copy of the pleadings in which pro-
ceeding more particularly referring to the serial numbers of said barrels being
hereto annexed for your information and convenience), and it has been suggested
to us that the facts as alleged by the libellant, the United States of America,
will appear by the testimony of, and by evidence in the possession of Henry C.
Outerbridge, and other witnesses to be hereafter named and pointed out to you
by the proctor or agent for the said libellant, who can produce and give com-
petent evidence and testimony concerning the matters above mentioned, and who
are residents within your jurisdiction, and without whose testimony justice can-
not completely be done between the parties to the said suit, and tliat the claim-
ant is desirous of having the evidence of other witnesses residing in your
jurisdiction taken and certified on his behalf;

We therefore request you that in furtherance of justice you will examine into
the following matters, viz., when, by whom, on what vessel, and at what place
the three hundred and thirteen barrels of whiskey proceeded against in this suit
were impoi-ted into the Islands of Bermuda; by whom said barrels of whiskey
were wai*ehoused; who had control and who was the owner thereof; who gauged
the same at any time while they were in the Islands of Bermuda; whetlier the



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PRACTICAL FORMS. 625

owner thereof ever examined said barrels of whiskey while they were in Ber-
muda; if so, when and where; whether the said owner of said barrels of whiskey
ever requested the person who warehoused said barrels of whiskey to doctor, or
add spirits to, change the condition of, or manipulate in any way the same; and
whether said barrels of whiskey were ever, while in the Islands of Bermuda,
doctored, changed in condition, or manipulated in any way by any one, and if
so, when and where, and by whom, and by whose instructions. Also, when,
and on what vessel, and consigned to whom, were said barrels of whiskey re-
turned to this country ;

And that you will by the proper and usual process of your court, cause and
require Henry C. Outerbridge, and the other witnesses to be hereafter named
and pointed out to you by the proctor or agent for either party herein, to attend
before you or one of you, or before some person to be appointed by you for that
purpose, and after they and each of them shall have made oath or affirmation to
speak the truth, the whole truth and nothing but the truth, that you will cause
the said Henry C. Outerbridge to produce the following papers and documents,
viz.:

First. All letters and cablegrams received by Henry C. Outerbridge at any
time from the American Export and Warehouse Company, of Cincinnati, Ohio;
from the firm of A. Pfirrmann & Co., of Cincinnati, Ohio; from the firm of Pflrr-
mann A Herzog, Cincinnati, Ohio; from George Herzog, Cincinnati, Ohio; from
Andrew Pfirrmann, Cincinnati, Ohio; or from any other person in any manner
relating to cei*tain barrels of whiskey or any part thereof received by him, the
said Henry C. Outerbridge, at St. George, Bermuda, from the port of Newport
News, Virginia, in the year 1883, and shipped to him, the said Henry C. Outer-
bridge, from the said port of Newport News, Virginia, on board the vessel
Freja, on or about the 22d day of May, 1883, and on board the vessel Warren
B. Potter, on or about the 7th day of July, 1883, and on board the vessel Pay-
son Tucker, on or about the eighteenth day of July, 1883, and stored by him
in his warehouse at the town of St. George, Bermuda, and thereafter removed
by him from the town of St. George to the town of Hamilton, Bermuda, and
there stored by him in his warehouse in said last named town. And more
especially a letter received by him, the said Henry C. Outerbridge, from the
American Export and Warehouse Company, Cincinnati, Ohio, at some time sub-
sequent to the month of March, 1890, which said letter related to the matter of
doctoring said barrels of whiskey or a part thereof, that is to say, of adding to
said barrels of whiskey or a part thereof, alcohol or spirits, and directed that
such doctoring should not be done.

Second, All copies of letters and cablegrams written and sent by Henry C.
Outerbridge at any time to the American Export and Warehouse Company,
Cincinnati, Ohio; to the firm of A. Pfirrmann & Co., Cincinnati, Ohio; to the
firm of Pfirrmann & Herzog, Cincinnati,Ohio; to Andrew Pfirrmann, individu-
ally, or to George Herzog, individually, or to any other person in any manner
relating to said barrels of whiskey or any part thereof. And more especially a
copy of his letter to the American Export and Warehouse Company, of Cincin-
nati, Ohio, written at some time subsequent to the month of March, 1800, asking
and inquiring if said American Export and Warehouse Company would permit
or were willing that said whiskey or any part thereof should be doctored or
changed in any way by the introduction and addition thereto of i^cohol or
spirits.

40



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626 APPENDIX.

Third. All books, books of accoant, or any other memorandnm showfD^ the
marks and serial d umbers of the barrels or any part thereof containing said
whiskey stored in the warehouse of Henry C. Outerbridge as aforesaid.

Fourth, All rec(>rds of the gauges of said barrels of whiskey or any part there-
of which may have been made while said barrels of whiskey were at Bermuda.

And that you will cause the originals of such docilments, letters, papers and
entries in any books or books of account, or duly certified copies thereof, to be
returned to us hereunder.

And also that you will cause the said Henry C. Outerbridge and the other wit-
nesses to be hereafter named and pointed out to you by the proctor or agent for
either party herein to answer upon their oaths the questions to be propounded
to them and each of them, and that yon will cause the said questions and the
answers of said witnesses theretp to be reduced to writing, and the writing con-
taining said questions and answers to be signed by them and verified by the sig-
natures of yourselves, or one of you.

And that you will cause the documents, letters, papers and entries in any books
or books of account produced by said Henry C. Outerbridge, or duly certified
copies thereof, and the testimony of the said Henry C. Outerbridge and of the
other witnesses to be hereafter named and pointed out to you by the proctor or
agent for either party herein, together with these presents, to be returned to us
by mail under cover addressed to the Consul of the United States of America
nearest to the place where these Letters Rogatory may be executed, to be re-
turned by him to the Clerk of the United States District Court for the Southern
District of New York, New York City, New York. .

And we shall be ready and willing to do the same for you in a similai* case
when required.

Witness the Honorable Addison Brown, Judge of the United States District
Court for the Southern District of New York, and the seal of said District Court
at the city of New York in tlie Southern District of New York, the first day of
October in the year of our Lord one thousand eight hundred and ninety-two.
[seal] Samuel H. Lyman,

Clerk.
United States of America, Southern District qf New Yorky »8. :

I, Addihon Brown, Judge of the District Court of the United States in and
for the Southern District of New York, do hereby certify that Samuel H. Lyman,
whose signature is attached to the Letters Rogatory hei*eto annexed, was at the
date thereof, the Clerk of the District Court of the United States in and for the
Southern District of New York; that the official acts and doings of said clerk are
entitled to full faith and credit, and that the attestation to said Letters Rogatory
is in due form of law.

I further certify that the seal attached to said Letters Rogatory is the seal of
this court.

Witness my hand and the seal of said court at the city of New York the first
day of October in the year of our Lord one thousand eight hundred and ninety-
two.

[seal] Addison Brown,

United States District Judge.



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PRACTICAL FORMS. 627

No. 222. — Same on interrogatories.

The President of the United States of America, to any judge or tribunal hav-
ing jurisdiction of civil causes, at Havana, in the Island of Cuba.
Whereas a certain suit is pending in our District Court of the United States
for the Southern District of New York, in which James Jones is libellant, and
John D. Nelson, Henry Abbot, and Joseph E. Tatem are claimants of the schooner
Perseverance, her tackle, apparel, furniture, and cargo, and it has been suggested
to us that there are witnesses residing within your jurisdiction, without whose
testimony justice cannot be completely done between the said parties: We there-
fore request you that in furtherance of justice, you will, by the proper and usual
process of your court, cause such witness or witnesses as shall be named or
pointed out to you by the said parties, or either of them, to appear before you,
or some competent person by you for that purpose to be appointed and author-
ized, at a precise time by you to be fixed, and there to answer on their oaths or
affirmations to the several interrogatories hereunto annexed, and that you will
cause their depositions to be committed to writing, and returned to us under
cover, duly closed and sealed up, together with these presents. And we shall
be ready and willing to do the same for you in a similar case, when required.

Witness, the Honorable Samuel R. Betts, judge of the said court, at the city
of New York, the tenth day of May, in the year of our Lord one thousand eight
hundred and twenty, and of our independence the forty-fourth.

A. B., Clerk.
C. D., Proctor for Libellant.
£. F., Proctor for Claimant.

{Certificates cls in preceding Form.)

{Annex Interrogatories.)

No. 223.— Notice of appeal.

United States District Court, Southern District qf New York,

Bobert Sinolehurst bt al.,

Libellants,

vs.

La Compagnie Generals

Transatlantique,

Respondent

Sirs: — Please take notice that the libellants herein hereby appeal from the
final decree made and entered herein on the 6th day of October, 1891, to the
next United States Circuit Court of Appeals for the Second Cii*cuit, to be holden
in and for said Circuit, at the City of New York.
Dated New York, October 12, 1891. Yours, etc.,

Sidney Chubb,
Proctor for Libellantf.
To Messrs. Coudert Brothers,

Proctors for Respondent.
Samuel H. Ltman, Esq.,

Clerk.



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038 APPENDIX.

No. 224.— AssiamfSNT of ebbobs.

United States District Court, Southern District of New York.

ROBEBT SlNOLBHUBST ET AL., '

Libellants,
vs.
La Cokpagnie GEinsBALE
Tbansatlantiqxte.

assignment of ebbobs.

The libellants hereby assign errors in the rulings and proceedings of the
District Court herein, as follows:

First For that the couii; sustained the objection made on behalf of the re-
spondent herein to the following question propounded to the master of the
steamship La Champagne^ Jean Laurente Boyer, upon cross-examination by
the advocate for the libellants :

" Q. Wliat information or instruction did you intend the master of the Lis-
bonense to gather from your answer of one whistle to his one whistle ?"

Second, For that the court erred in denying the libellants* motion to strike
from the record the answer of the master of La Champagne to a question pro-
pounded upon cross-examination by the libellants, as follows:

" Q. You think, then, that the pilot ought to have known it was your vessel
La Champagne that showed lights off the point of the Hook ? A. I think that
most of the pilots know the signals of our company, and they know what
steamer ought to go out a certain day."

Third, For that the court erred in denying the libellants' motion to instruct
the said witness to answer the said last quoted question by ** Yes" or **No."

Fourth, For that the court erred in overruling the objection made by the
libellants to the following question as being incompetent on redirect examina-
tion, propounded on the redirect examination of the master of La Champagne:

** Q. You have made a diagram, have you not, to show the effect, or rather
the result of yom* turning your course to starboard after sighting the Lisbon-
ense?" »

Fifth, For that the court erred in excluding the following question propounded
by the libellants upon cross-examination of Henry A. De Vere, pilot of La
Champagne:

" Q. Then why did you accept that signal when it was given ? A. For cour-
tesy's sake, which is the practice of the port.

** Q. Supposing you had been discourteous on this occasion for reasons of your
own, what would you have done ? Objected to. Objection sustained."

Sixth, For that the court erred in entering a final decree dismissing the libel
herein.

Seventh, For that the court erred In refusing to enter a decree in favor of
these libellants for the damages sustained by them by reason of the collision set
forth in the pleadings herein, with interest and costs, and in not adjudging the
respondents and their servants, the master and crew of their said steamship
La Champagne, at fault for said collision.

Dated New York, October 14, 1891. Sidney Chubb,

Proctor for Libellants.



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PRACTICAL FORMS. 629

No. 225.— Assignment of brbobs — bhobt fobm.
United States District Courts SoutJiem District qf New Tork.

Bbenezeb H. Davis, as Masteb, etc., '
vs,

A Caboo of Chalk, lately laden on the
Ship Glenfinlab. Howard Flem-
ing, Claimant and Appellant.

The above named claimant and appellant hereby assigns error to the decree
of the District Court of the United States for the Southern District of New
York in the above named case, in the following particulars:

First In that it ordered, adjudged and decreed that the libellant should re-
cover against said cargo of chalk the sum of one thousand eight hundred and
seventy-two and 15-100 dollars, and that the cai'go of chalk should be con-
demned therefor.

Second, In that it did not make a decree dismissing the libel, with the costs
of the District Court

Dated New York, July 24, 1891.

Benedict <fe Benedict,
Proctors for Claimant and Appellant.



No. 226.— Petition of appeal.
United States District Courts Eastern District qf New York*

The Cobnull Steamboat Company, '
Libellant and Appellee,
vs.
The Febbyboat Jebsey City, her
engines, etc. The Pennsylvania
Kailboad Company, Claimant and
Appellant.

To the Judges of the United States Circuit Court of Appeals for the Second

Circuit.

The petition of the Pennsylvania Railroad Company respectfully shows to the
court:

That on or about June 7, 1889, the libellant filed a libel in the United States
District Court for the Eastern District of New York against the said ferryboat
Jersey City, praying that for the reasons set forth in said libel it might be awa];d-
ed the damages claimed in the same.

That tliereafter your petitioner appeared in the said suit, and on or about
June 21, 1889, having made due claim to the said ferryboat, filed an exception
and answer in this cause, praying that said libel might be dismissed for the
causes therein set forth.

That thereafter and on or about the 26th day of April, 1890, the said cause
came on to be tried upon the issues joined as aforesaid before the Honorable
Charles L. Benedict, the judge of said coui-t, and such proceedings were there-
upon had tliat on or about November 11, 1890, the judge of said court pro-
nounced in favor of the libellant and caused to be entered an interlocutory
decree on November 18, 1890, granting to the libellant its damages, to be proved
before a commissioner of said court

That thereafter such proceedings were had, further testimony having beec



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680 APPENDIX.

taken before said oommiBsioner, that a rehearing was applied for by your pet!
tioner upon said testimony so as aforesaid taken, which motion was, on July 17,
1891, argued and submitted to said court, and on October 14th of said year de-
nied by said court

That thereafter, the said commissioner having made his report and the same
having been confirmed, such proceedings were had that on October 27, 1891, a
final decree in this cause was entered for the libellant and against the said ferry-
boat, her claimant and stipulators, for the sum of $1,406.66.

That your petitioner is advised and insists that said final decree is erroneous
in that it decrees the payment of the libellant^s claim, with costs, and awards
any sum whatever as damages to the libellant, and does not dismiss its libel.

For these and other reasons your petitioner appeals from the said final decree
to the United States Circuit Court of Appeals for the Second Circuit, and on said
appeal intends to seek a new decision on tlie law and on the facts upon the plead-
ings and proofs in said District Court, as well upon the hearing before the said
judge as before the said commissioner, and upon new pleadings and proofs to be
introduced in this court, and to that end prays that the records and proceed-
ings of said court may be returned to the United States Circuit Court of Appeals
for the Second Circuit, and that the said decree may be reversed and the libel be
dismissed, with costs, in tlie District Court and in this court, to your petitioner.

Dated New York City, November 18, 1891.

Robinson, Bright, Bibdle & Wabd,
Proctors for the Pennsylvania R. R. Co., Claimant and Appellant.

The foregoing appeal is hereby allowed.

Dated November 18, 1891.

£. Henby Lacombe, Judge.



No. 227.— Bond on appeal not stayino execution.

Enow all men by these presents. That we, A. B., residing at West e2d

St., in tlie city of New York, and C. D., residing at East IBlst St., New

York, are held and firmly bound unto John Doe, in the sum of two hundred
and fifty dollars, to be paid to the said John Doe, his heirs, executors, adminis-
trators or assigns, for the payment of which well and truly to be made, we bind
ourselves and each of us, our and each of our heirs, executors and administra-
tors, jointly and severally, firmly by these presents. Sealed with our seals and
dated the day of , 1893.

Whereas, £. F., as appellant, has prosecuted an appeal to the United States Cir-
cuit Court of Appeals for the Second Circuit, from a decree of the District Court
of the United States, bearing date the day of , 1893, in a suit

wherein John Doe is libellant against the steam lighter Alert, her engines, etc :

Now, therefore, the condition of this obligation is such that if the above
named appellant, E. F., shall prosecute said appeal with effect, and pay all costs
which may be awarded against him as such appellant if the appeal is not sus-
tained, then this obligation shall be void, otherwise the same shall be and re<
main in full force and effect. A. B.

CD.

Sealed and delivered and taken and
acknowledged this day

of 1893, before me.

(Juatijication and approval as in the following Form.)



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PRACTICAL FORMS. 631

No. 228. — BovD ON appeal stating bxkcution.

Know all men by these presents, That we, A. B., residing at West 62d

St., New York, and C. D., residing at East IBlst St, New York, are held

and firmly bound unto John Doe, in the sum of two hundred and fifty dollars,
and in the further sum of fifteen hundred dollars, to be paid to the said John
Doe, his heirs, executors, administrators or assigns, for the payment of whicli
well and truly to be made, we bind ourselves, and each of us, our and each of
our heirs, executors and administrators, jointly and severally firmly by these
presents. Sealed with our seals and dated the day of in the

year of our Lord, one thousand eight hundred and ninety-three.

Whereas, !E. F., as claimant of the steam lighter Alert, has appealed to the
United States Circuit Court of Appeals for the Second Circuit, from a decree of
the District Court of the United States for the Southern District of New York,
bearing date the day of 1893, in a suit in which John Doe is libel-

lant against the steam lighter Alert, her engines, etc., and ordering the said
steam lighter Alert and her stipulators to pay libellants the sum of $750; and,
whereas, said £. F. desires, during the progress of such appeal, to stay the execu-
tion of the said decree of the District Court:

Now, therefore, the condition of this obligation is such that if the above
named appellant £. F., shall prosecute said appeal with effect and pay all costs
which may be awarded against him as such appellant if the appeal is not sus-
tained, and shall abide by and perform whatever decree may be rendered by the
United States Circuit Court of Appeals for the Second Circuit in this cause, or
on the mandate of said court by the court below, then this obligation shall be

void, otherwise the same shall be and remain in full force and effect.

A. B.,

Sealed and delivered and taken and 1 C* ^^*

acknowledged, this 21st day of >
May, 1893, before me, etc. J

United States of Americay Southern District of New York, ss,

A. B. and C. D. being severally duly sworn, each deposes and says that he re-
sides in the Southern District of New York, and that he is worth the sum of
three thousand Aye hundred dollars over and above aU his just debts and liabil-
ities.
Sworn to this 21st day of May, a.

D. 1893, befora me, etc.
This bond approved as to form and amount and sufficiency of surety.

£. Hbnby Lacombe,
Judge of United States Circuit Court of Appeals.
Dated, New York, , 1893.



No. 229.— Notice op phjcng bond on appeal.

United Slates District Court for the Southern District of New York.
A. B., Appellant, \

vs. I

C. D., Appellee. J

Gentlemen: Please take notice that the bond on the appeal herein has beeik
this day filed in the office of the Clerk of the District Court of the United States



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632 APPENDIX.

for the Southern District of New York, and executed and given by E. F., mer-
chant, of No. Front street, and whose residence is at No. W. 57tb
street, in the city of New York, — and G. H., merchant, of No. Front street,
and whose residence is at No. W. 81st street, in said city.

Yours, etc.,

L. M.,
Proctor for Appellant.
New York, August 2d, 18
To Esqrs.,

Proctors for Appellee.



No. 230.— Citation.
United States qf America, ss.

By the Honorable E. Henry Lacombe, one of the Judges of the United States

Circuit Court of Appeals for the Second Circuit.
To Israel J. Merritt and Israel J. Merritt, Jr., libellants against the steamship

Venezuela, her tackle, etc., and her cargo.

Whereas, the claimants, John Dallett, Ernest C. Bliss, William B. Boulton,



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 68 of 80)