Académique Documents
Professionnel Documents
Culture Documents
OF THE
1809,
!V ADVERTISEMENT.
CIVIL JURISDICTION
OF THE
,,"D~llRALTY
m mystery, .
ted so late as the year 1781 -in thcJ{l"pat ea.se of Le
Cfl/u:IJv.Eclcn, If,thefl, in the reign"or-ELizabclh, \vhcn
The jurisdiction of the eivil Or instance eourl of ad- our anthonr wrote, the jUI.'isdiction of the court of au-
miralty, as it is at present understood, appears to be of miralty had been limited as it is at present, his ru]~s of
a strangely anomal~us kind, Mariners' wages, except practice wliuld have been particulur~y dirt,;ct.ed to the
where the contract IS under seal or is made in an unu- ~pecial caS(~5 of which it had cognizance, and pani-
sual manner; bottomry, in, certain cases only and un- cularly to proceedings in rem, "\Vh21'eaS the llHlll""l'n
der n.'any restrictions; and salvage, when the proper. subjects of udrniralty jurisdiction, buttomry, salvilge
ty shI~wreck~d.is not easl ashore; appear to be the on. and mariners' \vages, are not even rnentic,ned, ar;d only
ly snbJects WIthIn what is now considered to be its Ie. a single chapter or title (the 41st) relates to thow 1'1'0
gitimate cognizance. , ceedings which may prop~rly be said to be in T'c.m : for
we cannot call by that name an attaelmwnt of proper-
By the puhlieation of Dr, Robinson's Reports, we ty for the mere purpose of compdling -the appearance
!lRve been, ho"\vcvcr, for the first time informed) for of t.he .defenda.nt. on which the p'tlintd' does not claim
111 the common law hooks there is no trace of it to be any right of ownership or lien) a~ is the case in a suit
fo~nd, t.hat the court of admiralty of England, enter on a bottomry bond or fOI' -seamcns' \"-i1g,~s, But it
tams S~'tS for the mere possession of vessels though it seems from the context of _l\rIr, Clerke's book, thatthe
never Interferes ,""here the t·itle is in controversy. \i\i'"e admiralty, in his tiIne, had cognizul1t"t." of a gTCilt vn.~
ought also to have mentioned that the admiralty has an riety of matters and contracts \\-hi~h required the
ancient and long recognized jurisdiction, to· decide same modes of proceeding that m'e used by comts
between the parl owners of a ship or vessel, who dif- of general jurisdietiou. Indeed it nidently appean
fera~lOng themselves ahout the policy OJ' a\lvantage of that the greatest number of suits which the aumil'alty
sendmg her on a particular voyage. then entertained, were actions of debt founded upon
2
JURISDICTION OF 'rHE COUKl' OF AVNlHtALTY. Xi
contraCt, ,,:'hich 'were enforcell in the first instance by weight of royal aut.hority. So useful, however, were
the arrest of the debtor, if he was present, and by at- they considered to be to trade and COHunCl'ce, that the
tachment of his }lfOperty, in order to compel his ap- repuhliean Parliament enaeted them in subs tanee by
pc~ran ~e if he ,vas absent. They entertained petito- an ordinance of the 12th of April, 18".18. Seobell 14.7.
ry snits, ill which they decided on the titie to proper- Rut. at the- Rest.oration;; that ol'(Jin,ancc ceased to be in
t?' ; as well as possessory suits, for the mere posscs- fOrce; and the common law jUdgL'S began again to an-
51011. No tJ"accs whatever appea.r of such a limited ju- noy the admiralty court with prohibitions, as they had
risdiction as the admiraH,y possesses at the present formerly done. They did not) indeed, v~Hture to (tc
da}·. And it is remarkable that during' the 10110' reio:l1 prive them of all their jurisdiction; they left them the
" ~
of Queen .F:li.zabeth (furty-fouf years) no prohibition cognizance of those cases of bottomr;r and mariners'
appears to have been iSSllf'rl again:ot t.hp. admiralty 'wage:;; which they entertain at present, but declared
court, except. two or H.!l'ce v;;hich are mentioned by that they allowed it from mer~ indulgence and from
Lord Coke in "1,th Inst. hnt5vhich ,YC tio not find else- t.he necessity of the thing. On the same ground a pro-
where rrported, and whieh, if his report be correct, hibition was denied in i1 case of mariners' wages.. so
'were in violation of the ag:rccment that will hereaf- carly as the 8th of Jame~ I. 1-Vincll.. 8. AnOH-ymolls,
ter be mentioned. The aumiraHy jlll'i~diction then) as
far 8S lve are HO'V able to trace it, extended t·o all cases It is certain t.hat the CQud of admiralty) in its ori-
of [t'eight, chader 1)[Il'tics, uottomrY.. marilit~rs' ,,,ao·cs
) ~ , gin, had and entertained a. jurisdiction co-extensive
debts due to material men for the buildin.lJ" and rCI)air- with that of the maritime courts throughout Europe.
. 0
mgof ships, and generally) to what ,vas then consiuer- Those courts ,\Vere cstabliljhed lor t.he protcetiou of
·cd as 'mariti--me contracts. It extended also to con- maritime commerce, Lo \vhieh the feudal judicatures
tracts made abroad) bf~cause those were to be decided of those timp!'l ,\vel"C entirely inadequate. \V'c find
acco1'cling to the civil law, which was anti is still the them in the middle ages established in fill the maritime
law of ·the admiralty. Thi,;; jurisdiction ,vas secured countries of christendom; jn some under the.name of
to that COllrt hy an agreement which ,vas signed) in admiralty',,in others under that of consular courts.
the 17'th year of El-iznlwlh, h,Y all the common law In Hie south of l;:urope the judgl:s who had cogni-
judges., in order tu put an end to the disputes which zance of commercial undo ma.l.'itimc causes, were de-
their jealou,y had excited and perpetually kept alive nominated consuls; and the celebrated code by which
Vide 4111;0,'1. 1:36. they ,yere directed \vas thence called the consulate or
the sea, ( It Consolato rlclll1arc.) 'Those eonsnJs were
But those articles, in t.he subseclucnt rcio'ns \verl"
;::0 . , ~
mere civil judges, unconnected \vith the military
not executed \-"ith good faith, any nl0re than similar or feudal system; but. in the north, where fClldalify
ones ,vhjch "V ere as solemnl.y agreed to in the eighth most Hourished, and \-"here the judiciary po'weI' "vas
year of Cha.rles 1. Yid. }lay. 3. Sm Laws 235. .The considered as a necessary appL'ndage to military gran-
jndges cyaded them by subterfuges which were un deur, the constahle, who was at. the head or the land
worthy of the dign;t)' of the beneh, anti did not ob· armies, and the aclmiloal who c-umm;tnded the n:ivaI
serYe them Jonger than they were constrained by the forces) COl~ld noL, con5~sLently \\ .ith the dignity of their
xu JURISDICTION 01" '1'11],; COURT OF ADMIRALTY. XIII
stat:ons, be without a portion of the judicial authority, 'This was not, we presume, directed against the
while every petty baron had a court of his own. The king's courts, over whom we do not tlunk that the lord
constable therefore invested his lieutenants, as the ba- highadmiral ever claimed any jurisdiction or controul;
rons did their stewards, with the power of deciding but ag.ainst the multitude of inferior cow·ts with which
on aiiroatten; and differences ,","'weh arose out of tlu.,- Englund was filled at that period. The coart of ad·
,val'S ;. and the jurisdiction over maritime aftairs na-. mil:alty, indeed, claimed to be, and waS then amsider-
turally fell to the share of the admJfdL His court Was ed as one of the king's superior coud:5, and as such
established ou the model of the consular conrts; and exercised the power of checking and contl'ouling infe-
those maritime contmcts which are regulated by the 1'ior jurisdictions, and particuiarly the baron's courts,
Consolaio del j',lure and the laws of Oieron, were the which at that time ruled almost omnipCiLcllt witluu
subject matters of their civil jurisdiction. their respective precincts.
Of this fact there is a sufficient evidence to be found The sturdy harons could not submit to be checked
in the ancient records that are preserved in England in the midst of a judicial career, which \Yos so proJita·
in the Bl"ck Book of the admiralty. Among ttlesc, is ble to them. For it must not he ilnagined that they
an ancient statUte of king Edw ...rd 1 by which he Or. were very ambitious of the empty honour of adminis~
dained, with Lhe consent of his burons,H that the stew~ tering justice to their inferiors; and that, for that alone,
ards of their courts should not hold plea of any thing they would have b~cn anxious to obtain or preserve a
concerning merchunts or mur£ners} whether it be on share of the judicial authority. But a war of eonfis·
cho.rter.purties of "essels, obligatwns or other deeds, cations was then waged by the lords against their vas~
even though it should be und~r forty shillings. Other. sals. The church, OIl the one hand, and. the nobles, on
wise they shonld be proceeded against by indictment; the other, by mea.ns of their jud:cial establisbmcnts,
and if found guilty by a jury of twelve men, they vied with each other in rapacity. Eyen down to the
should be imprisoned at the discretion of the lord high days of Lord Coke, it was a current saying, thaL
admiral. "'if<
" Quod non wpit Christus, capitfiscus." :3 Bulstr. 147.
To secure, therefore, forfeitures, ,vairs, strays, heri
In the reign of E'!<VM'd III. Was made the celebrat. ots, deodands, and a variety of other feudal pm·qui.
cd inquisition of Qucellsbomu.gh, which is to be found sites, was the real reason which induced them to keep
in ZOllch'. Jw·;sd. of Adm. Ass. I'. 3,1. It contains a lhat power in their hands. The obsequious ste~var~l~,
list of ofl'enccs which the court of admiralty had then appointed by the lords, an,l removable at theIr wll:,
from time immclluorial been aut hodsed to inquire of seldom failed to doeide similar causes in fay our of their
and pnnish; and among those is that" of judges en. imperious mastel'S~ Among those perquisites, not the
tcrtaiIling pleas of cau,es belonging to the admiral, least important to them, was that of wrecks; and they
and of such as in admiralty causes, sue in the courts seldom failed to appropriate to themselves the vessels
of common law." Zou.ch 36. and goods which were unfortunately cast npon the E,:.
.Ok Se.e the text of this statute in Master Rowghtan's articles, printed ,,-/ish coast. -As wnck was within the proper man-
Wlth Clerke's Praxis. p. 152J ~ 4. Edit. 1198, time jurisdiction of the lord high admiral, he interfer·
XIV
JURISDICTION OF THE
COURT OF ADMIRALTY. XV
ed with them.' not "\-viih a view of rescuing the ship-
"wrecked property 1'01' the bend]t of the owners. hut in til the reign of Charles II. that a sCI·ions struggle tool..
order. to Obtain it himsea~ U5 a droit of his o11ice. At place between tht: two anthorities ; 'which finally tel'·
that.
tm,e_seYe'
'
J j'tlle Dl.li'ltlmc:
I i1 0
' , t'Jwns enjoJ'cdjran- minated in the triumph of the common law.
ch"" j U' ,
:. ~ . .s.~ " lClrowll, and Were eXdmpted from the ju-
1 JSChCt.lO.D of feudal lords and their :5te'.-vurds. There The contest \:a/as maintained with great ability, OIl
the mumei,pal authority, whose manncl'S were soft~n~ the part of the civilians, by Exton, Zouch and Gadol-
cd and renneJ by the plastick inl1uence of commerce ph-in, all of them eminent jurists. In S!lpJlort of the
~LI~d :he fine a~'ts,~ pres,er;Ted such shipwrecked pruper.. doctr:nes ,,,bieh tlley rh'fended, they displayed all the
) fi",:-' came "vJthm theJ!' oounds, and restored it to the ingenuity and fOl"t'c of rcason; but although thc
In.wJulowner. To them the exercise of that and oth weight of argnlnent was rni.lnifestly and rlecidctlJy on
P 'lI'!s
<
or tuehatl IllJi.'il( , J"IctlOn
' " 5 J' tlrJSf , became intulerableer. their side, yet the superior POWC1' and influence of the
itnd in lhe reign of BichanllI. they laid their e()m: king's court of comn"UHl law prevalleJ.
":lil lI1ts bdlJre p::l";:liam~nt.* The bit-rons, as may be
:.npposed, lent them a ready ear, and thcir remOl1strau_ But the works of thcbe civilians may be C01l5ulted
~cs fipccdily procnreJ the famous statutes of 13 Richa,rd with great advantage by thos.e \vho are desirous of be·
lI, cap, 5, ctnd 15 Richctrd II. wl" 3, by which w,'eck coming intimately acquainted with the natnre and ex·
.w~~.s! ~m?~g o,th~r things, ~xpressly excluded from the tent of the ancient jurisdiction of the English conri;
jllJ bdJCtLOll of tJIC court 01 admiralty. of admiralty, and the usurpations, for sO they must
n()w be called, ()f the e()mts ()f e()mmon law, They in-
By the iiI'st of these statutes it was enacted that the terpreteclthe sU~tllteg of .nichuycl in such a manner as
adnllralty ~hould ()nly meddle witl things do". lipon not to leave the t'.ourt of admiralty any eivUju'l'isdic
thc sca, as nad been used in the reign of Edwurcl Ill. Uonwhaievcl', Thi~ \va~ an interpretation "\vhiehconld
~l:.HI by t.he second t.bat he should not have cognizllnce nol have hCClJ tllt.~ iutelltion of the framers of the hnv,
0.1 contracts, pleas [lud qua--rrels, and othc)~ thinCi"Jj ri- who undoubtedly meant to leave the·m, excqJt.as 10
slI7gwilfiin the bodies of ciJwltic$:,,·lWT of 'wreck. It ·lereck, the same jurisdjction ,,-\'hich they had exercised
~,cemsjhO\:vevel" that notwithstanding these statutes in the reign 01 ]i;dwu"'d Ill. awl ,ve h~ve seen above
we court of ndmil'alt.y continued to exercise it~ ~ what that was. But the courts of common hnv deter-
eicnt jurisdiction l .... it11 hut little interruption f.ro~ ::e mined that if a contraC't \\'a..,.; liladc at sea, but tv he ex- .
courts of common law until the reil.Tn of Jail' ' I ecuted on land., or lH:L(I{~ on laud to be exceuted at seu,
tl' 0 es -.
- lat even m that reign and while Lord Coke sat on in either ca.se.. Ule common 1<l,W had jUl'is{liction ex-
th: ben~h, prohibitions were not frequent; that in the clusive or the adillil'ull,y. \Vhn.t contracts then were
!'elgn otCharlcs 1. the agreement which had been tho5c-which--rcmailled within the j-urisdiction of the
made under Elizabeth between the eOllrts ()f admiral- latter court "i' '~iho call eonceive an idea of a contract
ty and common law, f()l' the settlement ()f th . -made at sea. tv be Pf:lfU'J'mcd at sea? an instrument,
f ' . r . Clr res-
:CC lYe JurJSC lctJons was rene'wed; a.nd it was not un- for instance, made in one latituue to be executed in
an()ther? The civilians more rationally interJ'l'etedthe
3 Ref:l'fs' E'lg. Law, 1~7,
~tatntes to mean, by things wHl contracts dOllie at sea,
XVI JURI SDICTION OF THE COURT OF ADMIRALTY.
those things onJ contracts, which, although thc instru- possessed; or is it rcstricted by the statule> of Richarrl,
ment by which they were proved may bc made on II, and the adjlldieat,ion of thc Ellglish cOUl'is 1011lHl·
land, yet are of a maritime nature, and are usually ed upon them?
pe.-7iormed at sea ~ such as contracts of affreightment
and the Hke; of1he cognizance of which t.he admiral- In the case of the Sandl.v,te}", Pel. ..!l(LJn. 233, Judge
ty was clearly possessed in the reign of Edward III 1Vinchestc'J', of-the .i\laryl and District, ~aid that the
statutes of 13 and 15 R'icl"'rd II. haye received in
The question, however, is now at rest in England; England a COl1structjon whi~h must at all tillles pro-
and ihe high court of admiralty has submitted to the hibIt their extension to this conn try, and he goes on to
restrictions which the courts of eommon law have luention some instances of il'l'econcileable decisions
imposed upon its jnrisdiction. Yet in modern times, under those statutes by different judges.
the lalter have appeal'ed to regl'et that those en·
croachments had heen carried so faJ'; and their deci- It was difUcult for all :inconsistency Or a fabe l~on
sions, since the time of Lord Man,r/ield, breath a spi. elusion to escape the penetrating mind of this pro-
j'it of mneh greater moderation thon those of his pre- found la.wyer, who will long he r.ell1Cl~lb~rctl all)Ong
decessors. On several points, where it was doubtful the brightest IUnlinaeics of ~L\mcrJcan JUrJspl'udcnce.
the admiralty jnrisdiction has been secured and forti-
fied by clear and explicit arljudications; 'in other cas- ·Weare inclined to the opinion that the words ud-
e5, it has been evidently ~Illargcd; as in that of suits 1rt:i1~alty a.nd 7»aritimejuris(lietim~, in our .cOl~stitutiou,
on bottomry contracts 'llnde-r seal. Menetone v. Gib· Shollldbe so construed::ts to vest III thc DHitrlctCourb.
Dons, 3 Ten)?, _Rep. 287. There it \vas det.ermined that thosepower s which were formerly exercised by th.e
the jurisdiction of the conrt of admiralty does Dot de- High Court of Admiralty. The importance of m~r~.
pend on the locality of the eontract but Oil the subject tinle commerce, the necessHy of certajn~y and stablh-
'fIwtter, This is the very prineiple for which the civi- lily in its O]lerations and the diversity..ot .th~se, opera.
lians. have 80 long contended; and it only now re- atiollo require-an extensive aunllralty JurJSdH~tlOn-
mains to apply it with proper liberality in order to res-
tore to the courts of admiraHy, a part, at least, of that It oeconlcs us, hOlvever, barely to suggest this inte-
jurisdiction of whieh they havebecn deprived by the resting question, anu leave the investigaiioll 01'. it 10
unreasonable jealousy of the courts of COJllmon law. those who arc- t.he pro}Jer judges and VdlO are emInent-
ly bella qllalified for tilt: t",k than we eun prctend to
'Ve shon!d not have entered so fnlly into this sub· hc.
ject, bnt th.tf. we think there arises out of it an impor-
tant question nuder the epnstitution of the United For partieuiul' information on the subjceL of tiH';l)J>~
States, B:y that jnstrnment, the United States are in- sent jurisdiction of the eiy'lI o}' instance cOUl:L ot ad-
vested with the judiciary power in all cases of admi- miralty in England ;.mu of the laws and iorn~s by
raltya,nd maritime jm·isdiction. Is that jurisdiction which its proceedings arC g()\.Tcrn.erl, the reacl?r 1~ ~e
the same which the high court of admiralty formerly felTed to Brown's Civil fL'lld Adnnrally ].lU'W, _Ill ,'\ hJch
XVIlI JURISDICTION OF THE COURT OF ADMIRALTY. XIX
the subject is treated in a luminous, methodical, and ,1. The Resolution signed by all the common law
comprehensive manner. judges in the 8th year of King Charles I. on the sub-
ject of admiralty jurisdiction and afterwards disavow-
There are but a few decisions of OUT own courts ed.
which nlake any change on the subject of jui'isdietion.
The most important are, 1 Dall. 49. 3 Dan. 297. ,1 5. The Or~illance made by the Republican Parlia-
Cranch 24, 443, 447,452. ment of England, in 1648, on the subject of admiral·
ty jurisdiction.
~ur admiralty is yet in its infancy, and we must
walt for the slow hand of time to unfold the cxtent
of its powers. The fOl'ms of proceeding are equally
unsettled and various. We shall therefore, by the ad.
--A.
vice of a judicious friend, subjoin a collection of ap- Ordinance of Hastings on the subject of Admirall.,1'
proyed precedents. Jurisdiction..
-- D.
happen to be Inade within the reahn; so as the penal.
ty be not demanded, a prohibition is not to he grant-
ed. But if the suit be for the penally, 01' if the fJues-
tion be motde, whether tbe eharter-party be made 01'
Resolution upon the CMOS oj Admiral Jurisdiction.
not; Or whether the plaintii:Y did release, 01' other"visc
\Vhitcltall, 18th February. Present, the King's :Most discharge the same within the realm; this is to be tried
Excellent Majesty. in the King's COUl'l5, nnrl nut in the Admiralty_
I,ord Keeper, Earl of .Morton, 3. If suit be in the Comt of Admiralty, for building,
Lord Abp. of York, LOI·d V. \Vimbleton, amending, saving or necessary victualling of a ship,
Lonl Treasurer, Lord V, Wentworth, against the ship itself, and not ag'ainst any party by
Lord Privy Seal, Lord V. Falkland, name, but such as for his interest makes himself a
Earll\hr.hul, Lord Bishop of Lonllon. party; no prohihition is to be granted, though this he
Lord Chamberlain, Lord Cottington. done within the realm.
Earl of Dorset, Lonl Newbll1'gh. ~j..Altho' of some causes arising upon the Thames
Carli~le) 1\11'. Treasurer, beneath the Bridge, and divers other rivers beneath
Holland, Mr. Comptrollel·, the first Bridge, tbe King's Courts have cognizance;
I)cnhigh, lVh-. 'lice Chambcrlaiu. yet the Admiralty hath also jurisdietion there, in the
Lord Chancellor of Seot- Mr. SecretaryCokr, point specially rncntiol1cd in the statute of Decimo
hllld. Mr Secretal'y\Vindebauk quinto Richa·pdi Sec1Huli, and also by exposition and
equity thereof, he 111ay enquire of and redress an au-
This da.y the King being present in Council, the .Ar-
noyan(~es, and obstructions in those rivers, nut are
ticles and propositions following for the accomlnotla-
any impediment to navigation 01' pasBagc to or from
"lllg and settling the ditYel'cnee concerning Prohihi·
the sea; and no prohibition is to be granted in Burl!
tions, arising between his l\iajcsty':; Courts at 'Vest,
cases.
minster, and his Conrt of J.;.\t1.mira.lty, "'-ere fulty de-
5. If any be imprisoned, and, upon haheas eorpus
bated and resolved by the Board: and were then like-
bronght, it he certified, thaI nn)' of these be the can,"
,"vise upon reading the same, as wen before the Judge:;
of his inlprisonment, the partyshall be remanded.
of his :Mnjesty's said COllrts at vVestminster, Q5 be-
fore the Judge of his said Conrt of Admiralty, :tH,1 hi, Subscribed ~U.h Frhruary, 1()~i2", by all the .Jw1r.-es of
Attorney General, agreed nnto, and snhscribed by both benchcs.-'Tide Oro. Car. 29U. Ed. Lond
them an in his 'l\Injcsi'y·'s presence, 'vtz : 1657·. By Sir Harbottle Grimstonc.
,j,
JURISDICTION OF THE COURT OFADlVllRALTY. XXVII
Sir GeoTge Cooke was one of the Judges who sub- contracts made beyond the seas concerning shipping
,cTibed these ,,"solntions, w,d l.einseTted them in his or navigation or damages happening thereon, or ari.
'l'cpor'is, no doubt consider'ing the'm as taw, yet they sing at sea in any voyage; and likewise in all cases of
.vere afteTwaTds disavowed and said to have been Te- charter Parties 0]" contracts for freight, bills of lading,
nounced by scve·ral Df the Judges. Raym~ 8. ·I'YHI:J'in~I·_c:.'waJ:rel';_
----_--------~-:O:.:-cF~~J··
or damasrcs in !toods laden on board
.......-
" These resolutions," saH Brown,:2 Civ. and Adm. ships, or (jther damages done by one ship or vessel to
L. 79, "are inserted in the eaTly editioos of Coke's another, or by -anchors, Or want of laying of buoys,
" Reports; but left out in the later, seemingly ex in~ except always that the said Gourt of Admiralty shall
" <iustrid." And page 78 he says, "To these re.olu- not hold pleas· Or admit actions upon any bills of ex-
" tions the objection cannot be made, which is urged changeor accounts betwixt merchant and. merchant
" by my Lord Coke (4 Inst. 136) to the agreement of or their factors.
" 1575, that thongh it was read Over in his Majesty's And be it ordained, That in all and every the mat-
"presence, and in the hearing of the Judges, yet it ters aforesaid, the said Admiralty Court shall and may
" Was never assented to." proceed and take recognizances indue form, and hear,
--E.
examine, and finally end, decree, sentence 'and deter-
mine the same a.ccordin~r to the laws and customs of
the sea., and put the same decrees and sentences in ex-
ecution without a'lY let, trouble or impeachment what-
EtCtractf'-o", Scobell's Collection ofthe Ads and 01'- soever, any law) statute or usage to the contrary here-
dinances of the Republican Government of Eng- tofore malic in any wise notwithstanding; saving al-
land. Anno 16'~8-p"ge 147.
"Tays and reserving to all and every person -and per-
CHAPTER 112. sons, that shall find or thiuk themselves aggrieved by
an)' sentence definitive, or decree having the force of
The Jwrisdiction oj the Court of Admimlty settled. a definitive sentence, or importing a damage not to be
repaired by the definitive i:ientence give:t or interposed
The Lord. and Commons assembled in Parliament,
in the Court of Admiralty., in all or any of the cases
finding many inconveniences daily to arise, in rela.
aforesaid, theil' right of appeal in such form as hath
tion both to the trade of this Kingdom, and the Como.
heretofore been used from slIch decrees or sentences
merce ,vith foreign parts, through the uncertainty of
in the said Court of Admiralty.
jurisdiction in the trial of maritime causes, do ordain
and be it ordained by the authol~ty of Parliament, Provided always, and be it further ordained by the
That thc Conrt of Admiralty shall have cognizance authority aforesaid, that from henceforth there shall
and jurisdiction against the ship or vessel, with the be threejudgcs alwa.ys appuinted of the said court, to
tackle, apparel and furniture thereof; in all causes be uominated from time to time by both houses of Par-
\vhich col1cern the repairing, victualling and furnish- liament or such as they shall appoint; and that every
ing provisions for the setting of such ships Or vessels of the judges of the said court for the time bcing, that
to sea; and in all cases of bottomry, and likewise in shall be present at the g·iYing of any defillitiye sen·
-XXVIII JURISDICTION, &e.
I .f.DITIO.K_~
!
'-rRANSLATED FROl'l 11'11£ I../AS'f
TRANSLATION
OJthe Prefaee 1.0 the FiOh Eddi,,»
COURTEOUS READER,
I
!,
I
l'
On the Instance side. 9
Pmctice of the Court of Admiralty
Ii
b
may ~e found, in case she shall have left the port I will barely add, that in all other c~ses w.1Je:'e
of dehvery where her voyage ended, or in case the ])istrictCourt exercises an AdmIralty J~rls
she slmU be abont to proceed to sea before the diction, the course of proceeding.is, to file a lIbel,
in which the causes of complamt ~.e alleged.
c~piration of the ten days, ensuing the delivery
oj her cargo or ballast. 1. Laws U. S. 140. -
t Upon the receipt of the libel a monltto~ and at:
Such are the statutory provisions respecting f tachment are issued of course, by the Clerk and
suits Jor mariners' wages. In the case of Ed- served by the Marshal.]
wards 'liS. the ship Susan, Pennsylvania District,
tlle question arose, at what time a mariner, at the TIT, Q. Of the direction of the 1Varrant.
last port of delivery, is entitled to receive or sue
for his wages? Judge Peters, inhis decision, said,
that it had always appeared to him unwarranta-
ble to contend that the ten days should run Ji'om
THE \Varrant is issued in tIle name of the
Lord High Admiral of England,' al:(l it must
directcd to all and singular the J ustlces, Const -
b:
the time of the discharge of the cargo. He bles, Mayors, BailiJTs, and other officers of our
thought that the end of the voyage was, clearly Lord the King, particularly to D. M-arshal ofth~
the period when the wages, according to the Hi"h Court of Admiralty of England. ~t IS
contract were due. The discharge of the carn'O "1 t the ReO'istrar' of tIle Court to Issue
usua or " ·at 1
this \Varrant without a specI (ecree. or
f the
or ballast, is coupled with the end of the voyage
in the Jaw, not as part of the contract, or to fix urposc in the same manner thatpr1m~. or
the time, from which the ten days arc to be com- ~oIDmol;citations are issued in the EcclcSlastlcal
puted; but because it is a necessary step to ena- Courts.
ble the merchant to demand his li'eight: and the
wages ought not to be Jlaid, until this is recover' ~UCb was the practice in En~!and at the ti~e;;e~
able; it being the fund out of which the waO'es authour wrote,-bllt at presefnt It apFJarc~~~s tha~ :l~e
OUl'
ent All processes and even orms 0 e . h
are payable. He considered himself authori~ed redorded III Sir ~ames :Marriottj:'hFoIEulary vLt~o;e;
to inquire into the circumstances peculiar to each tick writs, run In the name 0 t e lng.
case, and in the exercise of this discretion, he l"st. passim. . th Dis-
. In the United States Courts, every proees~ IIIh e
had allowed at the least, ten days from the end of triet, as well as in the Circuit Courts, IS 10 t e name
the voyage, and at the most, fifteen working days of TheUnitedStates.-Tr.) ., f h L d
« In ~er 152 b there is a prescrtphon, or t h fd
to unlade. By the end of the voyage, he under· High Adm..a! to gr~."t the OfficehofCRle~st~~~h:i>i~trict
stood, the day on which the vessel was made fast . alty for life In thIS country t e er s C rt
to the wharf and ready to discharge. Pet. Adm. C~urts ofthe. Unit~d States are ap~o~n~dd~!i:10ffi::'a~
respectively 10 whICh they act, an 0
Dec. 165 .
will.-Tr·1
C
11
On the Instance side.
TO Practice of the Court of Admiralty ifitbean
. a copy ,
_ly sixpence fior t ht
receIVe D'llr usual CltatlOn.-
.' 0 on.
' s]
TIT. 3. Of the manner of e,recuting the TVar- orillnarY O
rant.
*h '1 t b given
ution or baz 0 e ."blJ
I
12 Practice of the Court of Admimlty On the 11l1ltallce sid£. .
1")
-- 1. CautiofidP;jussoria; by sureties. I upon proper causes, adnut the party to Ius JUl a-
tory caution t viz: the oath of the party to
i the same eff~cts for which bail should havc bcel\
3d. When he receives it in the presence of the party.
who does not protest against it. .
The ~udg~s are not hable, see §. last Inst. de Satisdat. --p-This security is lliv.en whe.n the. party is to!} po~»r
tuto. vId. Vmcen. de Franch. decis. 480. n.3. Farinac. to und aetual bail. It IS JIl the dIscretIOn of the udg'
part 1st. prax. crimin. quest. 33.
[' De Ratio is uot Latin. I find that Brown 2 Civ. T';;]l t" eu territorio vocato in judicium succur
n pa flO s . b ' ..(" n olum morbum.
& Adm. Law 356. has.it ratio; but it is clearly a mis. rituf, ohcausas ~ontlcas ~ sendt~a, ,n~ts'onenl et ih~r
take. The true word IS Rato; it is' so in all the best sed tempestatem, qUal Impe It navIga. I
I,exts._ Tr.] Uill probanda. Locc. 3. c. II. §. 4, 5.
q t Vid. Capell. Tholoss. qUals. 1:J8, n. Z
I
t
\,
14 Practice of the Court of Admiralty
On the Instance side.
given; particularly if it should appear to him
with the Proxy or Procuratory ad tites, in Ec-
that the party is so poor that he is unable to find
clesiastical causes; and it contains all those clau-
security. And if the party shall brinD" the afore-
' new
1 ' ~ ses and powers general and particular which are
salL. securIty, or shall be committed for want
usually contained in t.l:!em, ,vith these -excepti~
of t~ern, or if the Judge shall admit thc juratory
ons: that in the commencement of the proxy to
cautIOn, t~e former security for his appearance
conduct an Ecclesiastical suit, power is give~ to
shall bc discharged, the bail-bond is to be deli-
the Proctor in omnibus causis negotiis, litibus et
vered up, and the party arrested is to be re-
quereNs; but in civil causes, after the words
leased.
litibus et querelis, the words civilibus et 1Jla1iti-
TIT. 6. The execution of the TfTarrant. mis are added. Proxies of this kind, in order to
be authentick should be sealed with an authen-
IF the \Varrant have been executed by the ~ck seal, in the same manner that such papers are
Marshal, or by any of the Deputy Marsllals of In the EcrJesiastical Courts.* In the Proxies
the Court, then the same Officer IS accustomed which are fIled in Ecclesiastical causes, power is
to make his corporal oath that at such a day and likewise given to petition for the benefit of abso-
in such a place, he arre~ted the defenda~t ac- lution or liberation [i'om whatever decrees of
cording to the tenor of the "\Varrant. But if the excommunication, or of interdiction, suffered or
"\Varrant was executed without the City of Lon- to be suffered by law or man, whetheI' simply or
do~, or the s~~urbs, by a Mayor or any of the by bond. _ But in Proxies in civil causes, that
Officers specmed above In Tit. 2. the Proctor of clause is to be omitted and another is to be in-
the plaintiff shall procure a certificate of the ex- serted, by which power is given to the Praetor to
ecution of the "\Varrant at length, specifying the give and introduce, Ligios, cautiones et Fidl'Jus-
day and place of its execution: and he should sores, and also to demand and receive them from
have it sealed with an authentick seal, in order the opposite party.
tlJat full credit may be given to it., ad negot'ia, and the former ad lites; that is to say, the
one is an authority h-riven to an Attorney in fact, and is a
TJT; 7. Of the lVarrant of Attomey 01' Proxy.' matter extra-judicial} or, in pays, and the latter is an
authority given to an Attorney at Law, to manage 01'
prosecute one or more suits, or all' suits, and is a matter
THE 'Yarrant of Attorney or Proxy in civil of record, becanse it is always filed among the exhibits
:.nul marItIme causes, is made in the same form of the cause, and sometimes is executed before and at-
tested b}' the Clerk Or Register of the Court. In thc
P The Civil Lawdistinguishes, as we do, between a last case, it is said to be made ap'Ud (bela, in the acts of
Letter and a Wan'ant of Attorney. The former is Coui't.-Tr.)
"aBed a procuration, proxy, pl'ocuracy, ol'procul'atol'y, • Clei'. Praxis pel' Oughtonum, Tit. 4-8.
Ih Practice of the Court of Admiralty On the Instance side. i'l
person: such as are actions or causes for defa- above. Cons. Prac. . .
mation or. matrimonial, and such like; but in 09 3 4 5. &c. Gray. ad vest
[" Gail 1.391. verbo
obs. 1 .. 1'. 'Tr]
nisi 1or c.- .
t
[" Zouch Elem. JUl". p. 5. Sect. 8. Sect. et procurol". 1.4. c.4. n. .
T ...]
[" lust. Sect. orum. de Succes. lHyns. Grav. ad vest
T,-.]
On the Instance side. 25
24 Practice if the Court of Admimlty
muey, he be declared to have incurred the for-
TIT. 9. The petition if the Plaintiff's ProctO!' feit of his bond."
at the time of the return if the 1Varrant be, Then the Judge shall order the defendant to
fore the Judge. be thrice called upon his stipulation by the Mar-
shal of the Court, and in case he does not ap-
The Proctor for the plaintiff appears before pear, he shall pronounce the bend to be forfeit-
the Judge saying as follows ;" ed, and order him· to be taken into custody until
'~ I exhibit my proxy in writing, (or apud ac- the penalty be paid. When the defendant fails
ta, If he was thus constituted) for N. (i. e, for to appear, the Judge is accustomed to allow a
the plaintiJf) an? ,make myself party to the reasonable proportion of the penalty thus for-
same; and I exhIbIt the original mandate with Jeited, to the plaintiff, in consequence of the in-
the ce~tificate indorsed thereon, (or, upon the jury which he may sustain by the delay in his suit.
~xecutlOn of which the mandatory here present He may dispose of the remainder according to
III Court attests by his oath.) And I accuse lVI, his discretion;* for the aforesaid stipulation for
of contumacy because he was bound to make the appearance of the defendant was said to be a
hIs 1el!al appearance here this day, (as well by prretorian stipulation,'" and is, therefore, at the
the te~our ~f the m~dat~, as by the stipnlation disposal of the Judge. But in case the defend-
or unnertaking of hIs ball-bond which was ex- ant, notwithstanding the stipulation for his ap-
ecuted in tins behalf and remains in the hands of pearance, does not appear,but flies the Kingdom
t~e Registrar, or, which is now ready to be exhi. or dies, leaving no effects, then the whole amount
lllt~d by me? and is not now forthcoming." of the stipulation entered into by the fidejussores
Wherefore I pray that he be dccl<l.red in fbI' his appearance, is to be delivered to the
contumacy, and that, in pain of such contu- plaintiff upon his making proof of the debt.
[" By this and other titles in Clerke we learn that in * N am tota Summa foris facta, debetur Domino Ad·
~he early. s~age of jurisprudence, the pleadings were oral mil"allo, quia cautio, iIli interponitur non parti.
m the CIVIl, a.s weI! as in the Common Law Courts.
But a dJlferent practice has since been introduced and
r'" F-rretorian st;pulation ;s made to the Court, con·
·",,,tual to the party. The bail, al",e not discharged by
eyery thingi,n thc :ourse of a Civil Law suit, except in. the surrender or death of the pnDclpal, as at Common
c!dental mohons 1 1S now exhibited in writing in the va. Law. In proceedings in persMa,n, the caution for the
rlOus. fOI:ms ofLlb:ls, .Petitions, Allegations, Answers, "ppearanee of the party i" pl"ootorian.-Tr.)
RephcatlOns" Duplications, &c. which are not required
to!?e framed m any formal set of words. Theseformu. E
lar]~s, howev:er are curious, as contributing to show the
anCIent practice of the Courts of Civil Law in England,
and through them, as though oUr ancient Common Law
Courts, jmportant plincij>les may still bc traeeu, which
WIll be found useful to the modern praetitioner.-Tr.)
I
Pmetice of the Court of Admiraltv
On the Instance side.
TIT. 10.. Th~ petition* of the defendant upon
peljectzng hzs legal appeanmce. according to the prayed on the part of the defendant, and con-
shpula~!On, and the plai~l.tiff not appearing 01' demn the plaintiJi' in costs, or that he shall not
1le151ectzng to prosecute Ins swt. . be heard at any future day unless the defendant'~
costs are discharged: or he may grant a conti·
IF the defendant appear accordinO' to the ar- nuance ofthe cause untii Solne future Court day,>
r~st and the .bail which. was put in b; others for and then decree as above; or be may decree
hi':l'. he, or hIS Proctor 111 exhibiting his proxy, in that the plaintiff be called at a future day under
wntmg 01" apud acta, shall say: the penalty of being finally dismissed with costs.
" ~ allege that M. !:Jere present in Court was which is the more usual course.
and IS arre~ted ~ccording to the \VaITant or But tms is to be observed here; if the de
mandate which was issued fi'om this Court and fendant have his bail in Court, ready to aI1SWCl'
th~t he has given bail for his appearance 'here to the plaintiff in the particular cause, and be
this d~~, to answer the complaint of N. in a cer. lieves that the plaintiffwill appear before the day
tam cml and, ~ari~ime cause. But that the said which has been granted for his appearance, or
~. the plamtift, neIther appears in person nor bT on the very day on which lIe may be cited to
IllS Proctor, and neglects to prosecute his cause". appear, and proscoute the suit; then he, the de
and moreover t,h~t my client is re ady to produc~ fendant, may for fear of surprise, enter his secu·
prope! lU?d sUfficl~nt se?urities to respond to the rity at once, lest he might not have them read)
plamtif!" III the SaId actIon by him commenced. on the day appointed for the plaintiff '8 appeal'
accordmg .to tlIe provisions· of the law and th~. ance, and his bail-bond should be decreed to he
n~es of thiS Court. '~The.refore, r pray that my forfeited. And then a biJl of costs is to be
chent may be hence dismissed with costs and made out and taxed by the Judge, and the part.,
~at his bail-bond be decreed to be return~d to is to swear to the disbursement of the said cost.->
him or be cancelled:" But of the taxing of costs; the monition li)j'
~en the Judge shall cause the Plaintilf to be the payment of them and other incidental ex
publ.ICkly called by the Marshal of the Court penses, is to be proceeded on as in Ecele~i
and m detimit of his personal appearance, or b; astical Courts; with this difference, that in the
hIS Proctor, and on account of his utter negli. Ecclesiastical Courts the party who is condemn
g~n?e to prosecute his suit, the Judge in his dis- ed in costs is admonished to pay them by a cel'
CI etlOn, may pass such a decree as has been tain day; otherwise to appear on another da:,"
and show cause why he should 110t be excommu·
I' ~ . V~rle GaiL li~. 1. obs. 5D. pel' tomm. Et vid. nicated; whereas, in t.he A(lmiralty, in civil and
.·le} ke l'i Pra..""li:. In Cans. EccL Tit, 53. per OughtoDum.
maritime causes,the monition contains an injunc.
f t.ion to the party to pay the co,~ts by a cf'rtaiJ\
r
!
I
,r
28 Practice of the Court of Admiralty On the Instance side. 29
day mentioned therein, and there is moreover TIT. 12. Of the jidejussory security given bV
inserted in a capias clause, by which, if he the defendant, lind the stipulation which is en-
does not pay them on or before that day, the tered into by him.
officer is ordered to take his body and commit
.him to prison nntil he shall pay.* - * THE defendant ought to finrl at least two
fidejussores, who shoulU be bound respectively
TIT. 11. The Petition of the Proctors hincinde, to the plaintiff, in the sum for which the actio_n
if both parties appear. was instituted, to thcse eftects,t viz: to abide
the sentence, (judicio sisti) to pay costs, and to
b the plaintiff appear at the day appointed ratify the acts of the Proctor by him constitut-
either in person or by his Proctor, he shall say, ed, or to be constituted. But if it be objected,
"I accuse the defendant of contumacy, &c." on the part of the defendant, that the plaintiff
(as in Tit. 9.) Then the defendant, if he ap- has maliciously commenced his action for a
pear in person or by his Proctm', shall pray that greater sum than is really due to him, in order
a Jibel and fid~jussory securityt be given by the· that the defendant might be cast into prison for
opposite party, or that he be dismissed with want of fidejussores; the Judge, for the preven-
costs. tion of such fraud or rather malice, may compel
tThe Proctor for the plaintiff shall reply, the plaintiff to swear to the sum whlch he ex-
that, first he prays that proper fidejussory secu. pects to prove is due to him, and the fidejussory
rity be put in by the defendant according to the caution shall be taken to that amount :" ti,e othet'
provisions of law and the forms of the Court, to disbursements incurred by praying the decision
the effect specified in Tit. 12. of the Judge, and for expenses in supporting the
Then the Judge shall say "'Ve direct that cause, if the plaintiff succeeds, are to be added.
both parties shall file their :fidejussory security
by to-morrow, and that the plaintiff :file his libel " Vid Digest. Lib. ~. Tit. 7. 1. 9. But afte~ decree
on the same day. pronounced, are the fideJussores held to t~at whlch may
bc.pronounced in the Appeal cause? Vld. 1. 20. cw"
apud; where it is said they are not unless there be ano-
" Vid. Cler. Prax. in Curiis Eccles. Tit. 27. 28. 29. ther action. Vid. Bart. add. 1. et ctiam Castrens. ib.
per Oughtonum. t RmLEY'S View, pars 2, c. 1. §. 5. in fine.
t Although the Laws require that the plaintiff shall [" This seems now to be made nnnecessary by the
put in security by proper fidejussores before he corrects rule, 28th Jan. 1801, requiring an affidavit of the dcM
his libel, yet it is little attended to in Comts. addit. ad before thc "Vanant is.ues. 2 Bro. Civ. & Adm ·1HI
Capel. Tholos. qUals. 138. Tr.] ,
t For the plaintiff is not bound to libel, unless fid.·
jussory secmity has been first put in by the defendant
On the Instance side. 81
;,0 Practice of the Court of Admiralty
defendant, to the allegations contained in thc
TIT. 13. The Petition and Pt'otest of the Proc- libel, or any othel' matter by him suggcsted and
tor for the Plaintiff at the introduction of fide- filed. So it is lawful for the defendant ~o ll1~ke
jussores of this kind. use of thc personal answers of the plall1t~, to
any luatter of defence, w hethc.r by exceptIons
As it sometimes happens that the defendant or by any otlle~ kind ~f allegatJ?n~ whatso~ver,
introduces fidt;jussores who are unkno wn, or who which are by lum put lll. AmI ]t IS propcl that
are not able to pay the amount sued for, the thc Proctor for the defcndant should dissent and
Proctor for the plaintiff, at the production of protest at the timc of taking the lidt;jussores for
them, may protest against the admission or re- the plaintiff, in the same I~alln.er as was done by
ception of them and their insufficiency, and he the plaintiff in the precedmg title.
may pray for more ample security. This pro-
testation is particularly necessary, because, if it TIT. 15. The Petition o.f the Proctorfol' better
be neglected, the party is excluded from de- or more substantial security.
manding more substantial security at any future
period of the cause. * ALTHOUGH lidejussol'Y' caution has b.een put
in on both sides, yet if any of the fid~Jussores
TIT. 14. The production ofjidPjussores on the are not suffident, the Proctor for the adverse
part of the plaintijJ: party may object to them, either at th~ contesta-
tion of the claim or alter the conclUSIOn of the
* THE plaintiff is also obliged to find fidt;jus- cause, in these words:
sores to' these effects, viz. for the prosecution of
.i; When the security is prretorian or judicial, upon
the suit; for the payment of the defendant's ihe death of one of the fidejussores. or upon the cvent
costs if the plaintiff fail in his callse.t and for of his becoming insolvent, the 11arty m"?, d~mand ad-
the production of the plaintiff persona]]y as of- diiional security-secus, when the sec~r1ty l~ c~nven
tional, vid. 1. .i ab arbitro. 10. §. ,:,l~. DIg. qm .atl.d~re
ten as he may be called. For take notice. that tenent. et Alber. et Angel. etJas. IbIdem m 8 Not. Vm-
the plaintiff can use the personal answers of the cent. de Franchis. decis. 480. .
[In the Admiralty they do not take re~o.g~llzances,
* Vid. Capell. Tholos. deeis. 138. nu. 3. vid. auth. -* hecause not being a COUl·t of record, a prohibItIOn would
generaliter Cod. de Episc. et Cleric. vid. Fachsii diffe- lie. This seems to be the lawaI. present, though there
rentias Jnris Civilis et Saxonici, Lib. 1. Tit. 40. p. 154. has been mnch dispute upon the subjcct. ~ee Zouch,
Novell. 111. 2. OIdendorp. Class. 1. Act. 7. in fine. Godolphin and Lord Rayne, 1285, 1. Bro. C,v. & ~dm.
t Cave. For unless you add, in -wh'ch the pl"intiji .'361, says that tI,e secmitics or .tipulatio'.'s taken 111 the
shall be condemned, the fidejus.ores will be bound to C~urt of Admiralty, in thc nature of b~Il have no P!":
pay costs thongh the plaintiff may not be condemned in orlty over .pecIalty debts, nor do thcy aftect law•.. N 01
costs. Thus Salicet. I. in the conclusion of Cod. de fruct. I. the heir boono bv them unless expnssly mentIOned.
e! lit. Expens. nu. 2. verslc: and therefore be careful. but the executor i•. ..:...Tr.]
among his neighbours and acquaintance to be a Judge ought and he usually does decIde upon
poor man, especially as not worth such a sum, or summary proof, in order to prevent any delay
even a much less sum than that for which he is of the principal cause and further exp~n~e toth~
bound. Therefore I pray that better and more parties and if he be ahle to ascertaIn Immedi-
substantial security be given by the adverse ately by any persons present in Court, (for on
party, or that be be taken into custody until such Court days merchants are usuallJ-: there, who are
security be given by mm." generally acquainted with the cIrcumstances of
Then the Proctor for the opposite side shall the citizens, and often they are known to the
say: Judge himself) he shall order the party to pro-
" I disscnt and protest the nullity of this pe- duce further and more sufficient security by some
tition, and I deny the truth of the allegations con- if
future day. But the ~remises be n?t pr?ved,
tained in it: and I allege that the fidejussores in the Jud"e shall assIgn a tune for hearmg hIS de-
behalfofiny client in this cause, are good and suf- . q
termmatlOn.
ficient, and that they are able to pay the amount
of the sum for which this cause has been insti- TIT. 17. The form of prlYVinl5. the SIf1Jiciency
tuted, and as such they are commonly accounted or ins1ffficiency of thefidPJussores.
and esteemed. Therefore I pray that may cli-
ent be not required to put in additional security SUMMARY and not full or exact proof is re-
in this cause."* u:
quired in such a case: Thus, the party alleg-
ing the insufficiency of the fidejussores, produce
* And note, that although the fidejussores Pllt in by to the Judge, a certificate under th~ hand ofthe
the defendant were sufficient '!t the time when they were
reeeived as sueh, yet, if they afterwards beeome lapsi King's Collector of the Revenue 111 those ll arts
faeultatibus, as it is said above, the defendant is bound in which the fidejussores dwell, that they do not
to give other and better seeurity. Likewise if the fide-
jussores who were introdueed at the commencement of
pay their taxes, or, at least, not ~s much as they
the cause, cease, during its pendency, to be sufficient, are rated at, or if from the certificate of honest
the parly, in whose hehalf they were introduced, ought men of the neighbourhood who are known t? the
to give others. Judge, it appear that these men are publickly
held and reputed to be poor, -or, a~ least, not
worth as mucIl as the aJllount for whlch they are
F
84 Practice of the Court of Admiralty Un the Instance side.
security, or a sum much less than that for which As all civil and maritime causes are summ~.
the action was instituted, the Judge should de- ry,* the mode of proc.eeding i~ the same as, m
cree as above in Title 16, But, on the contrary, Ecclesiastical cases,t VIZ. there .1S ~o be a dec~ e~
. if the party which produced the fidejussores, for th" anoearance of the prlllClpal party, a
shall prove in the manner abovementioned, or p;ob~t01;: term is to be limited or as~igned: t~e
by any other kind of proof, that his fidejussory . . I'IS t 0 be produced' the WItnesses ill e
caution is good and sufficient, then the aforesaid pnnclpa . , ., ~ tl
to be brought into Court: a com~ISSlOn .or 1e
petition for the introduction of new security is examination of witnesses IS to be Issued, If the)
to ,be refused, either in express terms, or ta- are within the Kingdom, or, if the~ are not, a
citly by proceeding in a manner contrary to it. commission sub muture vicissitudin.ls,. from the
mutual aid granted by different .iurlsd.ic~on~ for
TIT, 18. The secul'ity to be interposed by the the furtherance of' justice: that commiSSIon IS to
principalparty to indemnify hisfidejussores, be proceeded in and duly ce!;tified: the publi-
cation of the testimony is to be prayed and. de-
A~' the same time and in the same record ill . d linally the course of proceedmgs
which the stipulation OJ' recognizance of the c rde e . a n , 'tbtle
'until pronouncing the final sentence IS ~ e 1
. fi~ejussores Was taken, as in Title 12. the prin.
Clpal party enters into an obligation to a similar same as I'n the Ecclesiastical Courts1 WIth the
exceptions which shall hereafter be s lOwn.
effect with that for which the fidejussores are
bound, and also to indemnify' them against the Summat':m breviter ac de plane citra strepitum
'J!: 1, . t f 0 cui velum sole-
consequence of their security, And this caution forensem, leyaLto velLio,.~ ~ ?e{l~ ;,S2' Welwood Tit. 5
of the principal party ought to be taken in dou- bat prmtendl oec. ..,
ble the amount of the fidejussory caution, or, al f. ~~usamaturanda ob navig~ndi neeessitatem, cujus
least, in a greater sum than that in which they t' mora. Locc. LIb. 3. c. 11. ,. 2.
. ul
are bound, at the discretion of the Judge. peM::xr:e i~ ~~usis de submersis navibns ~ut na~r:;,
., Cod.11
gns. . .55. Locc . Lib. 3. c. 11. 2. 0 wre
81'0il WelW TIt. 5. f. 53. h . t't' 'n
TIT, 19, The giving or tendel'ing a libel. ln~omueh that they need not put up t elf pe I IOns'
·'ting Welm. Tit. 5. f. 54. I' . t'
WII'n Ad'mIra,
. I't at. Hollandi...
. duplica non est Itlgau I
11§2
the exhibiting and introduction of the
bUi!~:~ili:'~~i;ti;~a~i!~is ~~~iib~~.e:,~t.e§.u~~vc
AFTER
iidejussory cautIOn, !line inde, to the efiect spe-
cified in Title 12. the Proctor for the plaintiff' proeedendum per Jura ~ueclm.LE . T't 61 58.80,76.
t Vid Clerk Prac. III caUSIS ec, 1, •
shall say: ;<6.6.5.62. 97. 9.~. 96. 71. &e. 221. pcr Oughtonum
" I give you a libel and pray decree for pI'''
eeeding in a plain and summary manner."
36 Practice of the Court of Admiralty On the Instance .Iide 37
PROOFS'*'
I
Evident and clear, or the fact, ari oath,
full proof which makcs a jnst p"esump'
so much as serves to de- tion, fame, Or nn-
ed, and it is requested to take theIr depOSItIOn>
or cause them to be taken, in due course and
which havc) termin.e t.h.e snit; and: doubtcd circum form of law for the furtherance of j~stic~ and
relation to tillS is done either by lstanees.
the fact are " sub mutUr13 vieissitudinis obtentu: that IS With an
said to be or offer on the part of the Court mak!n~ the request
eit.her
to do the like for the other in a snndar cas~., ~J
Less evident,t which (one witness, a
make some proof of the I private book, or these Letters Rogatory are receiv~d by an mien
matter, bnt not so muchJ writing, amean, or Judge, he proceeds to call the WItnesses be;fOl:c
.l . as win gi'ouncl a sen-") reasonable,orin.
tence upon; this is made I differen t pre-
by lsumption.
him, by the process commonly e~ployed wlt]~llI
his jurisdiction, examines them on mteITogatorIc,'
or takes their depositions, as the case may be,
• De hisce pYob. apud Liud. videas t. dejure jur. c. Ptesbyteri. Sect,
quod Si verb. probationes.
t Maseard. de prQb. vol 1. quest. 4. n. 16. Ummius disp. 15. th.!. ale.. ---;;-Vid. the form of Letters Rogatory in Clerke', Eo".
ubi. s. et in tract. presumption. in prjn. par. 3. n. 2, Wesemb. in f. f. de Prae, Tit, 167'. p. 236
prob. & pres. n. 4. ubi plene de his probation. divisionibus reperias.
Speculator tit. de prob. .aect. videndum.
88 Practice of the Court of Admiralty On the Instance .,ide.
and.the proceeding~ being filed in the Registry miles, or is bound on a voyage to sea, or is about
~f. hIS Court, aut~entick copies thereof, duly cer. to go out of the United States, or out of the Dis..
:Iiied, a:e transf,mtted to the Court Ii quo, and are trict in which the Court is held, and to a g-reater
.legal eVJdence lD the- caus p If tlu.lo I.... HS:O''P''" .........0 distance than one hundred miles, before the time
tlil'cc~ed to a Co~rt of sup;;'iOl~:ju;i';di:;-ti;~,Ot h;; o.r. trial, or if he be ancient and inJirm, his depo.
appOInt an exammer or commissioners for the sltron may be taken de bene esse before any JudO'e
[lm'pose of executing them and the proceed- or Justice of the United States, or bef~re ag\,
mgs are filed and returned in the same manner Chancellor, Justice, or Judge of a Supreme -~r
Such is the manner in which the Courts ~f Superior Court, Mayor, or Chief Magistrate of
those co~n.trjes of Europe which are governed a City, or Judge of a County Court or Court of
by the ClVll Law, proceed with rerrard to each Common Pleas of any ofthe United States. But
other. In former times, even the" Courts of the person before whom the depositioll is taken,
C?mm?~ Law in England availed themselves of must not be of counsel or attorney to either or
thIS pr:vJlege of calling upon the Courts of other the parties, nor interested in the event of the
c~untl'les for their assistance. Thus, in the. cause, In such cases it is necessary that there
re~gn of Edward I. in an action of trespass for a be a notification from the Magistrate before
ship and cargo, Lette!,. Rogatory issued from the whom the deposition is to be taken to the adverse
Court where the action was pending directed to party to attend and put interrogatories if he
the: Count of Holland, requesting him to cause think lit. This must be served on the party or
a? mquest to be taken by good and lawful men of his attorney, as eithey may be nearer, i I' either
hIs own count,?" to ascertain what goods, wares, be within one hundred miles of the place of such
and merchandlzes had been shipped on board caption, allowing time for their attendance af-
the vessel in question. 1. Ro. Ab. 530. pl. 13, ter being notified, not less than at the rate of
""By the Judiciary Act, (Laws U. S. vol. 1. p, one day, Sundays exclusive, lin' t~very twenty
4/) t!le ,mode of ,Proof b,f oral testimony and miles travel.
exam:natlOn of wItnesses m open Court, is the In causes of Admiralty and maritime jurisdis.
same, 1Il all the Courts of the United States, as tion, or other cascs of seizure, whcn a libel i,s
well 111 the tm~l.of causes in equity and of admi- filed, in which an adverse party is not named,
3'lty and mal'lume jurisdiction, as of actions at and the depositions of persons in the circum-
o~mo~ Law. ~en ~~e testimony of any stances above described, are taken befill'!c a
person 18 necessarym a crVllcause dependinO'in claim has bel'n put in, this notiHeation is to he
one of these Courts, who lives at a grcater dis- given to the person who has tbe agency or pos-
rance from the place of trial than one hunr!t'erI session of the property libeJled at the time of the
';upture or seizure, if known to the libellant
40 Practice of the Court of Admiralty On the Instance side, 41
Every person thus deposinO' must be carefully ex- tatem to take depositions according to common
amined and cautioned, and sworn or affirmed to usage, when it may be necessary !o ~revent a
testify the whol.e. truth. The testimony must be :failure or delay of justice. The CIr~wt Court,
reduced to wrItlnl! only by the Mamstrate. or in the same maImer as a Court of eqUIty, accord·
the. deponent in hi~ presence, and mii'st be ~ub ing to the usages in c~3.!Icery ~ay direct deposi.
sCrI~ed by the latter. The depositions are to be tions in perpetuam rez m~morza"! to be taken as
retaIned by the Mamstrate until he shall deliver to matters which are cogmzable III any Courts of
it with his own ha:d into the Court for which the United States.
they were taken, or they must be sealed up to- It is to be regretted that the principle of the
gether by the Magistrate, with the reasons of Civil Law with respect to Letters R~gatQry,has
their being ~aken, and ofthe notice, if any, which not been introduced into our practlce. Com-
has been gwen, and remain under his seal until missions of dedimus potestatem are liable to
opened in Court. Any person may be compel. great objections. It is sometimes difficult to pro-
led to appear and testify before a Magistrate in cure the nanIes of commissioners and when they
the =.e manner as he might be compelled to are obtained, it is often impossible to prevail upon
appeD-nn C?urt for the same purpose. them to act. They have n0 power to compel
Il~ .the. tr~al . o~ any cause of Admiralty and the attendance of witnesses, and as they rarely
marItime JurIsdiction, from the decision of which receive a compensation for their services, they
it is lawful to appeal, if either party satisfy the do not care m1¥'h about attending themselves.
Court, that probaJ.>ly it will not be in his power Thus the return of the commission is protracted,
to produce the WItnesses who are there testify- the Attorney is unable to account for th~ delay,
ing, before the Circuit Court should an appeal his opponent is ordered to press for a, trIal, aIld
be ha~, aIld move that their testimony be taken an honest creditor is frequently deprIved of a
down III wrIting, it is done by the Clerk of the just claim. This is far from being an C?xagge-
Court. This testimony may be used on the trial rated picture, We may add.,that the Wlmesse,s
of the appeal, if it appear to the satisfaction of CaImot be prosecuted for pel)ury bef?re the trI-
the Court, that the witnesses are then dead or bunals of their own country, nor, whil~ they r~
g?ne out of the United States, or to a greater main there, can they b~ prosecuted III that III
dIstance than one hundred miles from the place which the cause was trIed. It often happens,
wher~ the Court ~s sitting, or that by reason of too that the constituted authorities of the place,
age, SIckness, bodily inlirmity or imprisonment, co~sider these commissions as an encroa~hment
they ace unable .to travel and appear at Court, upon their jurisdiction, and refuse to per~t them
and not otherWIse. The Courts of the United to be executed. Instances of this kin~ h.ave
States have full power to grant a'dedimus potes- sometimes happened in cases of commISSIOnS
G
42 Practice of the Court of .J.dmiraJty On the I7l$tance side.
he usually are, to tI,e
which have been issued by the Courts of the OQl.mtry, . dil'ect~d as \a!e without any des~g
United States, the commissioners having been Judge of a partlcula; ~ having Admiralty JU-
threatened with punishment if they proceeded nation, the District u ~~'son to cause them to
to act under them. risdictiorris th~proP1f j -
These alld other inconveniences have been be complied Wlth.- r.
sensibly felt by practitjoners, who have long - certifying the dec(ec
wished that something more effectual for the TIT. 20. The mannCt1: oj 1 the Libel, if the de-
advancement ofjustice were introduced into our to answer the allega. wns 0 •
practice. In more modern times the practice of jeruJnnt cannot be Clted.
issuing Letters Rogatory has fallen into disuse . inal warrant or mandate
in the English Courts ofCommon Law and com- ALTHOUGH every ong erson of the defend-
missions of Dedimus potestatum have offered a contains an arrest of the P' 's called the pCI'-
or as It 1 ,
feeble substitute. But, however, it may be with ant, yet the decree, rind al party, to answer
respect to the Courts of Common La~, whose sonal warrant to t~ ~ in tle libel, ought to c~n
practice does not properly fall within the scope the charges ~o~pnz~e the decree to the yrm-
of our present inquiry, the principle is fully tain only a ~tatlOni .astical causes. But If the
established in England, that Courts of Admiralty cipal party m :f,cc e~o that a citation canno~ .be
indifferent countries are to be mutually aiding defend;mt abscond, 11 it is to be certlbed
and assisting to each other, and are ever bound him persona y, th
served upon. himself in person upon ~a .'
to execute the judgments of each other. The by the mandatory .ft t. as in Eccleslastl-
reason which is given, is that they all proceed or by an authentick ccrU c~ ~ be prayed and
by the same system of jurisprudence, the Civil ~al ca~s. . And ~~~~~~I:g~st the .principal
Law. 1 Vent. 32. 1 Ro. Abr.530. 1 Lev. 267. pll£sed In manner vc mentioned. vIZ. to ap-
1 Sid-. 418. 2 Keb. 511. 610. 1 Show. 143. 2 party to the eff~ct abo etent day at the pleasure
Show. 232. Skin. 59. Raym. 473. 2 Ld. Raym. pear on a certam com return of this citatory
lhc
Danv. abr. 265. of the Judge. l.Jj>~. dant do not app~, a
f. dI::.
:
of which the mandatory here present in Court if on the same day the fidejussores do not obey
maketh oath) and I accuse of contumacy X and the mandate, (that is, if they fail to have the
Y, the fid~jussores on the part of the defendant principal party forthconiing)he may immediately
who were ordered to' nroduce him in (;nllrl: thi. charge them with contumacy and pray as be-
day, t.o an~wer, in.pers~n, the positio~ ;'hich-;; fore.* And note, t that if the principal party
contamed m the. libel: otherwise to appear per- should appear within one or another day (intr;i
s?nally here thIs day, by producing the prin. unum aut alterulIl diem) after the interposition
Clpal party to abide the aforesaid effects accord. of the decree against the fid~jussores that they
ing to the stipulation QY them interposed; or to have incurred the penalty of their stipulation,
show cause why they should not be declared to and are about to be committed, and before that
have incurred this forfeiture or penal stipula. decree has been executed upon them, the Judge
tion.* 'Vheref~re I pray. that they may be de. may moderate the penalty or forfeiture, notwith-
creed contumacIous, and m pain of their contu- standing his decree.:j: But it must be done in
macy that they be declared to have incurred this such a mllllner that a part of the sum thus mo
forfeiture; and I pray that they be ordered to
stand comniitted until the said forfeiture shall be .. Yid Clerke's PJ:ax. in Caus. Ecc. Title 7'0. per
Oughtonum.
paid." t When a person has stipulated any thiug under any
~hen the Marshal is to make publick procla- certain penalty, as, if within a certain time he shall not
produce a defendaut, or if that time being elapsed the
ma?on. for the aforesaid fidejussores, and upon penalty shall be forfeited, Justinian still relieves the
then- faJlure to appear, they are to be pronounc- fidejussor so far as not to exact the penalty immediately,
ed contumacious~ in pain whereof they have in- but after a certain time, within which he may purge the
delay, by producing the defendant, or by making de·
curred the forfeIture and are to be committed fence for hIm. Farinac. pars 1. a pram. crimin. quCES
until it is paid. Yet this is to be noted that it 34. n. 135. Greddre·us in I. 12. Digest. de Verb. Sign;f
is not usual for the Judge, although he d~es pos- V. 1. nu. 12. Perez. prrelect. in Cod. de fidejuss. n. 18.
Which he conldnot otherwise-obtain, because,regularly..
sess the power, to pass this decree on the first no excuse nor subterfnge will avail to prevent the for·
?ay appointed for the appearance of the fide. feiture of the penalty on the day prescribed bv the obli·
Jussore~; but t~ wait one or two Court days and llation; nor is there any necessity for forthcr interpos-
mg or monition, when, that day being added, tbe party
to contInue theIr appearance. If this be done is sufficiently jllstified in requiring the fulfilment of the
the Proctor. for the plaintiff should take care; engagement. Zas. ad I. si iftSulam Dig. de Verb. ObUg
that the. certIficate of the warrant introduced by ! Because the security is Prllltorian. Prllltorian Sli-
pulations are favourably received gl. in I. sancim'us Cod
the fidejussores be also continued, in order that, de fidejuss. in verb. pecunias. Vid. Card. Mant. lib. Hi
Tit. 20. n. 17. Zas. in I. insula". Dif{. de Verb. ...... 2J.
• Dig. Lib. 2. Tit. 8. c. 2. §. ult. Qui saHsdare eogan- et 24. .
tur1 &c.
48 Practice of too Court of Admiralty On the Instance side. 49
derated shan be given to the plaintiff, on account to have incurred the penalty of their stipulation,
of the delay and the expenses of llis cause. as above, Tit. 22. Also the Proctor for the
plaintiff may, ex abundanti and for g:eater cau-
TIT. 23. The petition of too jidejussMes if they nOR nrav the Judl!:e that he admolllsh the jide.
appem' on th~ day appointedfor them, to bring j~;;o::e~, "when theyhavepetitioned and alleg~d
in the principal party. as before mentioned, to appear on the aforesaId
day which was assigned to bring in the princi-
ACTIONS which are instituted in the Court of pal:that they may hear .themselve~ declared to
Admiralty, are generally between merchants, have incurred the forfeIture, prOVIded thcy do
as well foreign as domestick, and masters and not producc thc principal, in wh!ch cll;s.e the 8m?
mariners. '. Therefore if the principal party, for of forfeiture may be passed, In ~aIn of. theIr
the appearance of whom the fidejussores are contumacy, evcn though the aforesaid certlficate .
summoned, be absent from the kingdom at the should not have been continued.
time when he should be produced,' the fidejus- And here two things are to be noted; first,
sores are bound to appear in order to purge that if the plaintiff or his proctor s!lOuld sus~ect
themselves of contumacy, by stating the cause that the jidejussores demand a dehberatory tune
of the impediment, as the absence or illness of . to produce the principal, for the purpose ?f de-
the principal, and holding themselves ready and laying the cau~e, .and tha~ on the day assIgne~
willing to bring him in, on some future compe· for bringing lllm Ill, they :ntend to allege othel.
tent day to be assigned by the Judge. And if frivolous reasons to obtam a second delay 01
they make oath of the truth of this allegation,* respite for bringing ~ in, o~ even then to, pra,Y
the Judge ought, and he usually does, appoint. it commission to foreIgn or distant parts lor his
some future day for the fidejussores to bring in examination; he may, on the first day of the ap-
the principal for the aforesaid effect, according pearance of the jidejussor,es, when ~he.y pray a
to the distance of the residence of the prin deliberatory time to produce the prmclP.al, call
cipal. upon the Judge to compel them, at that tlme, to
At this day the Proctor for the plaintilIought have the benefit of a commission to foreign parts
to pray, as above, a continuation of the certifi· or places at a distanc~ from the Court, for~~e
cate by him already tiled against the aforesaid examination of the saId defendant, underpaID
fidejussores, that if they do not surrender the of being deprived of that privilege at. a future
principal on that day, he may, in pain of their time. And the Judge, for the preventIon of de·
contumacy, demand that they be pronol!nced lay, has the power and is accustomed thus to
decree.
* Vid. Fllrinac. Pra". Crimin. pRr. 1. quo 34. nu. 147. H
On the Instance side. .')1
50 Practice of"
:J the Court ocr
:J Ad:mira
. ItV
be produced and an oath administered to him,
Second!y, the Judge, for cause or for favouy in the sanle manner and form as in ,Ecclesiastical
may admIt a Proctor to appear for the jid' '
sores, who may state th . CJus- causes;* and he is to be admonished to undergo
prevent d th e reasons whICh have an examination by a day assigned by the Judge,
~no,. .~ ~" e a1?pearance of tile princinal. ,mel under a certain penaity, sometimes of forty shil,
it;." ume to be assignedulr prodUCfug 'h~- , lings or five pounds, at the will of the Judge and
is ~ol~ctJ~~n~~~~J~OlntJnecdessity, tJ~e certificat~ according to the importance ofthe cause. And
a . 0 le ay appomted for the if the party does not submit to the examination
Ppearance,01 the principal, in order that 'f h
j not appear the .It d I e
(0 before the day appointed he is to be charged
decree as ab' l·]1 ge may pronounce his with contumacy, and to be pronounced to have
certific;te ha~jVbC'eW lldi~ I cou.ld not be done if the incurred the aforesaid penalty or mulct; and
en scontmued.
he is to bc committed until he has paid it and
TIT. 24.. The production of the i " submitted to the examination. The money is to
the 'mmlshment to b . ,.fl· d pr: nC1pal and be appropriated, at the discretion of the judge,
r e 1?ij,lcte up' h' if I
refuse to submit to an examinaont' 1m I dele to pious uses, especially to the relief of poor
oath." , z a n un r prisoners, or sometimes to the plaintiff if he be
})()or, becausc the process is impeded by the
IF the principal bcing cited should a delay of the defendant, to submit to the exami·
answer Pl p.e~ to nation. Yet the Judge is ,H:clIstomed, ex gratia
_ _ the charges contained in the Jib e, ltlS to to reservc the forfeiturc of the party until some
f" It oppears ii'om the who!. c tenour of thIS. work
that, at the time when't,
future Court.day, before he decrees him to have
o~ :,"~dllliralty cxercis~d\:as~:~~ten) the Engli.sh Court incurred the penalty and orders him to be ar-
dICtIOn thallI't doe' at .
f ' , presen t Dnlore . extenslveJ'U!'is
ng reign' l'ested.
0,. E!'],zabeth! in which our autilo ur fi~n~ thhedlo
\\ It 1 ,but a SIngle case of a . . . nIlS e ,we meet
AdmIralty and in that their I?ro~Idb.ltI?ll to the Comt of
of their principallllodc of prl\Ceeding, anciently bein!,
Cro.,Eliz 685 I' .luns IctlOn Was sustained by capias or warr"nt against the person, and their ordi-
. . , t was not lInn th b ' nary stipnlation being [Ie ,in Jurlicio sisti, which is in the
01 J~une~ and Charles J. that\, !l e su sequell,t r~igns natnre of our special bail. At present their jurisdiction
HO'':Jn!j h·.o~ the enmity which Lo 3c' k~ pI'~hlbltIOns,
H~ JI:l!'l!HI,lctlOn, 'was ponred uponr tho 0 Ct bOl e towards
i5 almost entirely confined to prooeedings in rem, The
,tipulations which are now usually given in the English
that tllne, it is probable 'h t at ourt. Before and American Courts of Admiralty, "re de judicat1l11l
every kind of contr"cts "a tlley took cog'nizance of
forei~ners. This ext na~l~ a.?~·o.a~. behveen 01' with so/vi, to abide by the judgment of the Court, and pay
c~nstantly and strenu~~~]Oj J:n."~lc"on ~Ye find them the sum which shall be awarded, Hence, the learning
of our authour concerning the proceedings which a.re ne·
alter the Restoration abo { C ~llnmg: untIl SOme time cessary to fix the bail, when tlie principal party does not
have relinnuishcd tl ' u wInch perIOd they, appe",' to
k
R,01...'.11.-1. '.
Am. uneqnal cout ~s.,
Ed. JeTh'~ t T" ' neAu'rM'a, 3 appear, is become almost obsoletc,-T,',]
. 1,'; acc.onnt.·dor the circumstance " Clcrke'- Prax in Can, Ecc Tit ',0, per OughtQ'
num.
53
On the Instance side.
52 Practice of the Court oi' . Ity
:J ,0.Ad:miTa
expenses are to be tendered to them. Upon
ADDITIONS TO TITLE 24. their appearance an oath is to be administered
in the fonn of oaths to witnesses; and they are
to the positions ~rt~O t~e
[If the defendant ref to be cautioned to subInit to an examination
:m.swer the oath to
under penalty. If they refuse to be examined
uther matter to which h e libel, or to anv
swer; or doth pretend e o.u~ht,
by law, to ;U;. the same process is to go against them as was
he ought not to take a;:y~rn~olous causes why before directed against the principal party, in
nounced pro conji s ' e IS not to be pro- thc preceding title.. . -
though he have b:~o~~:r~dfess~g the matter,
manded to take the oath. b mom~ed and com-
nounced as excornm . ' ~t he ~s to be de·
to be signified to th ~ca~e , ~d IS thereupon
ADDITION 'ro TITLE 25"
imprisoned and th:re :ig/-MaJesty,. and to be [THE witnesses may be required to appear
the oath. Ecc. Pract P egamed, until he take before the Judge or comInissioners. rVesemb.
If the defendant i ' . . cap. S. §. 4. n. 1.
in Paratit. Cod. numb. S.lit. D. Scurf. cons. 9.
true answer he m sbsworn and do not give a
f b . ' ay e called ag . d . nUn!. ,3. cent. 1. Aleiat. test.jol. 148. Sect. fjua-
o emg pronounced cont . am un er pam
~d pro confesso" or as 0 umaclOu~ and decIar- liter sint testes producendi.] •
mg those things whi h ne confessmg or grant- e
he TIT. 26. Compulsory process againstwitness ,'
fully to." ib T'h'" c all refuseth to answer ~VIIO are summoned and do not appem>.
",' . ISISC edapr
,eSSIon. J.J!Ianual J. de .es~ptive
.
con- .
fessio. ur. verb. slgnijJ. verb. con-
UpON the witnesses being summoned and
An en'oneous confession failing to appear, an oath being made of the
any time before sentence pro~J d therevoked at
. b
service of the sUlllIDons( and the tender of tra·
made evident Th ' e e errour be velling expenses, a compulsory process is to be
. e revocation t b
b y th e principal .ar mus e made
.
y
ally constituted PAto/' ordeb a proctor especi-
clat. confessio.] day and w.
decreed against them to appear by a certain
e the oath usually sworn by witne5
ses, and to give testinlOny in the cause. If the)
TIT. 25. and requisition and prouudlon
The the J • cannot be personally cited, a decree viis et mo-
nesses of wit-
re.J:<use' to be exa manner
. d oi'
:J
proceed'l1lg 1if they dis is to be im}Jetrate,d: and that is to be exe
J mme. cuted and certified in the manner and form
which is prescribed in Tit. 20, 21. IT they do
WITHIN the probato' t . n"t then alJpear, a decree or warrant is to be
to be required t ry erm the WItnesses are
o appear, and their travelling
54 Practice of the Court of Admiralty
On the Instance side, 5.'5
gTanted for their imprisonment until they sub..
mit to be examined. Also of the manner and form of praying for this
commission and for instructions, how to procee~
TIT. 27. The petitionfor and issuing of a com- under it agreeably to law, read III thc same ~ook,
mission, for the examination of witnesses re~ Tit. 95. 96. But this is to be noted, that III all
siding at a distance from theplace where the commissions 0 f this nat ure, sec ul aI', and not ec·
,
Court sits." clesiastical persons are to be named as conmns-
sioners, And thcy are usually directed whcn
BEFORE the expiration of the probatory term, sent beyond sea, to the JUdges. and Con,suJs a~
if the witnesses dwell at a distance fi'om the seat ministering Law in the town of N---:--. Secus, m
of judgment, so that they cannot be produced Ecclesiastical causes, because, comnu~slOns the,r..
in Court without great expense, and there is must be issued to persons of EccleSIastICal dIg'
danger ofa loss of testimony to the litigant par- nity,
ties, a commission is to be prayed and decreed.
In the execution of it, the proceedings must be
bad in tile presence of thc adverse party or his
Attorney, under pain of being declared in con-
ADDITIONS TO TI'l'LE 27.
tumacy, in omnibus et per omnia, as in the Titles [The commercial Courts or Tribunals on the
which specially treat of these things in Clerke ' t 0 f Europe were formerl,/v called
PrIDL 80, 88, 89, 90, 91. 87. 86, 95. 96. by contIllen . SCon-.
Oilght(fll. suls. In France, Judges and CQns~tl~; III pam
Priors and Consuls; in Italy, lJ;Jan.tl1n~ Consuls.
But if the witnesses dwell without the king- Hence the most ancient work, whIch IS extant,
dom, wllich is genel'ally the case in these mari- on mmitime and commercial law. is called, the
time causes, a commission'" sub mutW2 vicissitu-
dinis obtentu et in juris subsidium, from the mu- C onsulate of the sea. II consolato ilel1llare: th,at
. the I aw or ,J'urisprudence receIVe'ald an
IS,
( . d dUllt
C a.t -
tual aid granted by different jurisdictions and in
ted in the consular or COlIllIlerCI oUI S.-
support ofjustic.e, is to be prayed and granted:
Hence also, commercial agents who are sent
(24 A commission adpartes, is a cOffilnisron to exa. "'-
!rom ~ count~"
Oil", 'J to another are called ,Consuls,
'di
Hline ·witnesses whose places of' residence are sO distant because they formerly had a cons~ar JurIS ~
from that where the Court sits, as to render it inconve_
nient to have them produced in person, Their derosi-
tion, or cognizance of all commerCIal, and man-
<ions are taken hy the Registrar 01' Examiner ° the time causes between subjects of th,Cl1' ~wn na-
Court, as is usual when they are nigh to the COllI'/.- tion; a power which is still exercIse,tl 11l some
Tr] .
~ Vid. Francisci Aretin. consil. 82. qllresito 4,'
countries, by virtue of particular treatIes, The
Consuls of the United Stat~s and France were
On the Instance side. 57
50 P J'actice of the Court of Admimlty
Bac. Abr. Q()2. 2. lnst. The Court thought the
po~sessed of this jurisdiction, within the tel'd. objection fatal, although two of the three who
torles of each other, in consequence of provi- returned the commission were of the defenclant's
SlOns to that effect in the consular convention of own nomination. 4. Dall. 410.
4-hr>. 1 AA·1.. 1\.T..... ,,~ 11"J'00 1-' L
\;1:,"" ~ '3lHI .J,.'" U v . .J.' uo; WHiCu becwlle aIIllulled by As far as my experience cxtends, commis-
Vll'tue of the Act of Congress of 7th July, 1798, sions usually g~ to three persons with powcr to
and ha;s never been since, nor probably ever will any two to act. :Many commissions are exclud-
be revlVed. ed from beinO" read on account of their not be- .
To these commercial and maritime Courts ing executed"reO"ularly. No precise directions
th~reforc, commissions sub mutum or letters ro~ , can be O"iven as to " the proper manner 01' execut-
gawry werc,in.our authour's time, usually direct- ing the~, because each State has its peculiar
e(~; and at. this day it seems that they might form; but the commissioner can seldom commit
with proprIety be directed to the Court or an error ifhe read his authority with care. Each
J~~ge, of the place to which they are sent, exer· examination should be signed by the deponent ,
clsmg adnnr~ty and maritime jurisdiction. and his signature attested by such a number of
On the subJect of commissions vid. Wesemb. the commiSSIOners as are rendered necessary to
p,:ratII~' Cod. num. 5. lit. B. Ruland. de COlIl- be present at the examination. The expenses
m:ss. lb. 1. c. 2. n. 7. Gail 1. obs. 89. n. 3. of commissions are llsually paid by;, the party at
9b. n. ~. Jacob Blum. proc. Camero tit. 78. p. whose instance the' commission issued, or in SUelI
89. AlcJa~u~ de position. Sect. quid sit. Fo!. 181. other manner as has been agreed upon previous
. ~omlIlIsslons for the examination of witnesses to the issuinO" of them. In the case of Lynch
1I~ England, run join.tty. and seJVerally. N otice i~ v. TfTood in Pennsylvania, the plaintiff claimed a
wven to both comnusslOners, and if one absents variety of expens~s which had been incurred in
hImself after that notice, the other is at liberty to the execution of a commission that had been
proceed a~o~e. In the caseof the Ceres, where issued for him exyarte. The Court allowed the
one commISSIoner declined acting in the absence charges for swcal'ino' the wi,tnesses and for their
of the other, because he thought he had not attendance; but r~jected
" those for agency and
p~w~r to do so, the Court granted a new com- for travelling to collect the testimony. 1. Dall.
mISSIon, but said it was solely on the !ITound of
the r~fusal to proceed. 8. Rob. Adm. Rep. 107 310.
Under a commission, if a ,vitness diselose a
But. III the case of Guppy v. Broom in Pennsyl: collateral fact to which the inquiry was not di-
vama~ ':Vhere a conumssion had been issued to rected the Court will allow a second commis-
four,Jolntly, and was executed and returned by sion to' be issued for the purpose of an examina-
three of th~m, the defendant's counsel objected ~ion of that fact ] New York T. R. 345
to the reading of the depositions and dted 1 T
58 Practice of the Court of Admiralty
On the Instance side. 58
. If the n?tice ot an application for a commis-
SIOn contam the names of commissioners, and the sion arrived in London. At the January term
party. served do not then object he is preclud. 1803 of the same Court., it was decided, that
ed. lb. 5.
f> A. commission to examjne maybe issued be~
wher~ a plaintiff has delayed his own cause by .H
lore ISsue joined, ib. 73; but special circumstan. commission; and it does not appear that due dl-
ces must be disclosed to warrant I't 2 N Y T liO'ence has been used, the defendant may apply
R. 259. ' .... f;;' a rule for nonsuit, and compel the plaintiff to
. \Vhe~I a rule for a commission has been ob.
stipulate or be non-suited, as if n? commission
had issued. .February 1804, a motion was made
t~ned, It sUspends the cause until, on applica-
tIOn to the Court, a 'Vacatur is ordered and en- for leave to enter a judgment, as in case of non-
suit for not going on to trial. It appeared that
te:ed. . But if .t~e defe~dant appear and exa.
a commission had been issued, but not that due
mme wItnesses It IS a wazver of his commission
and the 'Vacatur is unnecessary. ib. 73. diligence had been used in the execut.ion .of it,
If the defendant has joined in a commission as eight months had elaped between sUIng ,It out
the Court will not vacate the rule by which i; and the sittings. The Court therefore .sa~d the
was g:anted, on the application of the plaintiff. motion should be granted, unless the plamtiff en-
tered into stipulations. 1 N. Y. T. R. 527. .
but w.ilJ grant a rule to proceed to trial notwith~
standing tIle 'tommission, ib. 115.. And where Where a defendant's commissioner has mIS-
~ def~ndant has obtained a rule for a commis_ laid a commission, in consequence of which it is
SIon, In wllich the plaintiff does not join, and a not arrived but is shortly expected, the Cou!'t
will not !ITant ajudO'ment as in case of non,sUIt,
~erm has elapse.d wltho~t any proceedings under
It, tIle Court wilJ permIt to go to trial ib. 50S though there Ims b~en a former stipUlation.; but
So where ~ commission has been se;t to Eng~ will allow to stipnlate anew on payment of <:o~ts.
land and eIght months have elapsed without any 2 N. Y. T. R. ·1,7. After a second comrrnSSlOn
r~turn, the C?urt will give leave to proceed to has issued with leave to go to trial notwithstand-
ing, the Court, under special circumst~nces,
trl~; but tlus .doe.s not prevent CaUse b~ing which have been discovered afterwards, will va-
shown at the Clrcmt, wlly the trial SllOUld not
tllen be put off, ib. or even if tIle usual time is cate the rule as to going tt? trial and allow a fur-
not elapsed. 2 N. Y. T. R. 4.7. ther time for the retul'll. lb. 253. .
In the case of Juhel v. The United Insurance A notice for judgme~t a~ in case o~ ~on-sUl~;
Company, October 1801, the Supreme Court of is not waived by a notIce for a comllllSSlOn. "
New.- Yor~ held, that three montlls was a suffici. N. Y. T. R. 140. . T
ent tIme for executing aIld returning a comnUs. The act for the amendment ofthe law, ofN ~:\
York 1 Rev. Laws 351. §. 11. does not speclfy
that the commissioners should live in the Statf'
60 Practice of the Court of Admiralty On the Instance side, 61
to which the commission is addressed, and the Its object is to compel the ap~earance of an ab·
Cour~ will therefore issue a commission to per- sent or absconduw debtor,andm case he does ap
sons In that State to take the examination of pear, to satisfy th~ deb.t ou! ofhis effects an,d cre-
persons in Pennsylvania. 3 N. Y. T. R. 105. dits. A respectable wl'lter mforms us that this pr~
Tr.] cess has ITone into disuse in the Courts of Adnu-
raltyofE~gland and Ireland. 2 Bro. Ciy. &Adm,
TIT. 28. Of the lVarrant to be impetrated in 435. The reason of it is that the jurisdiction of
rem where the debtor absconds, or is absent those Courts in instance causcs has been so much
from the Realm. narrowed by prohibitions thatwith the exception,
suits for mariner's wages, certain cases ofb?ttoJ.ll-
, ALL that was written in the preceding Titles ry and salvage, and certain possessory SUltS, Jor
IS to be understood as applicable to cases in ships,all ofwhlCh are, in ~ost cases, proceedi.ngs
wqich the defendant is actually arrested to res- , in rem, there hardly remaUlS to them any subject
pond in a civil cause. But ifhe has concealed of civiljurisdlCtion, The process of attacllment,
himself or has absconded from the kingdom so therefore, has been disused, because there have
that he cannot be arrested, if lle have any go~ds
,
been no occasions which would reqwre a ,re-
m~r~handize, ship or vessel upon the sea, 0; course to it. But if a case of debt should al'lse,
WIthIn the ebb and flow of the sea and within the c1eariy within the jurisdiction. ?f a Court of All-
juris~ction of. the Lord ffigh Admiral, a war- miralty as for instance, a marltJrne contract made
rant IS to be Impetrated to this effect, viz: to at sea, to be executed at sea, which c~n indeed
attach such goods or such ship of D. the de- but very rarely, if ever happen; yet If such a
fend?nt, in whose hands soever they may be; and contract should be made, and the ~!e~to: s?ould.
to CIte the said D. specially as the owner, and conceal himself, or' be out of the JurlsclictlOn oj
all others who claim any right or title to them to the Court, there is no doubt b~lt tha,t the proc~ss
be and appear on a certain day, to answer unto of attachment would lay agamst hn!! according
P. in a civil and maritime cause. to the course which is here prescrIbed b:y .the
authour, Huberus, de jus in vocando,say,s,lt IS a
= remedy which is not warr~nte~l ?y the c1Vlllaw,
ADDITIONS TO TITLE 28. but the principle upon which,l~ IS fOUD,ded, may'
be tl'aced in the maxim of JuslJman, debltor, credl.
" ['~his proceeding is in nature of the process of loris, est debi/or creditori creditoris..- T:.] ,
10relgn attachments under the custom ofLondon "Sequestration, regularly speakmg, IS pro~l.
which has been introduced into most, if not ali bited, yet goods may lawfully he attached m
of the States with great advantage and success. these cases:
On the Instance side. 63
62 Practice of the COU1't of Admirrilty
tration any kind of pro.oI: either by a publick \
1. If the defendant be suspected of 11ight; instrument or instruments is sufficient. To dis-
that is to say, if he does not possess sufficient charge the sequestration, the debt is to be
real 01' personal property, otherwise not. Scac- proved by such publick instrument or other writ-
cia. dejud. Lib. 1. c. 35. n. 6. ing as would be proof in other eases. Scacc. n.
2. If he be suspected of embezzlement; and 24. &c.
he is said to be so suspected, if his shop remain But, according to Peckius, the proof may he
shut contrary to custom: if at the time he play at made in another manner, because there is danger
unlawful games: if he borrow money upon usu- to be apprehended from the delay wllieh might
I!
rious interest: if he. do not possess real pro-
perty equal to the debt: if he conceal his per-
occur before the necessary proof could be ob-
tained, and because an irreparable injury is not
,,
i
sonal property in secret places, whence it can done to the debtor who may dissolve the attach-
eaSIly be removed; if he be involved in divers
fidt;jussory securities: if he have played the
ment by entering bail. This othel' proofis accord-
ing to the discretion of the Judge, who sho~J1d II
like trick before: if hitherto he has been back- have respect to persons and accurately examme
ward in paying his debts, and have at present, the causes of suspicion.
nUUlCl'OUS creditors who are importunate. Scacc. S. If he be declared in contumacy, Scacc. 11.
Lib. 1. c. 38. n. 10. Peck. de jure sistendi. c.
16. n. 2.
This suspicion may be proved summarily and
5. the Judges of our day, according to custom,
decree a sequestration at the instance of the cre-
ditor alone, without the existence of any suspi-
I I
i
i
by half-proof; and sometimes by the oath of the cion. Scacc. n. 11. Ifnothing is proved to tIle
creditor without a.ny citation to thc opposite Judge and nothing is sworn by the cl'editor, the
party, according to the will of the Judge. Scacc. attachment is granted upon the simple as'sertion
n.28. of the creditor. Peele. nu. 5.
Before making the seizure, a full proof of the Neither is it needful to execute summons or
debt is to be made to the Judge according to his citations in such ca~s, elsewhere, but where the
di scretion, as Scaccia says, and a citation is issu- ship or quarrelled goods in question lie, or at the
ed to the party unless he be suspected of flight, usual place of their haunting." \Velw. Tit. 5. f.
in which caSe, the citation might be the cause of 61. [who quotes De rjJicio Admiralitatis Auglice
his absconding. os To the granting of the seques- in fin. cum iM citatis.]
The debtor mavbe afl'ested either on 01' be-
[OS The original is to me obscure. The praciice fore the day he is suspected of flight; and so
ahroad is, to issue a citation before the attachment goes.
If the debtor appear a summary hearing takes place ; if likewise may his goods be attached in order to
hc does not, the citation being returned is a proof of compel him to put in bailor acknowledge his
his absence Or absconding.-Tr.]
64 Practice of the Court of Admiralty On the Instance side. 65
obligation, since i~ the mean time he might die or for some cause which existed before, or which
run away. But m other cases, the plaintiff is arose afterwards, was bound to the person arrest-
I~ot only prevented from doing'this by the excep' ing: CaIl this void arrest be justified by the sub.
tlon, but he may also be officially hindered by sequent cause of action? This question has its
t!1C J?dge, as soon as it appeal's to him that the advocates on each side, aIld there are not a few
tune IS not come. expounders of the law of the highest authority
I ca.nnot reclaim aIly thing which I have loan- who think that the arrest wInch is void in itself
ed untJl the lapse of some time, because the hor- may be justified by the subsequent cause of ac-
rower could havc derived no benefit from it ex- tion; and Soc. in tract. de citato says, if a person
cept in case he be suspected of flight. It i; not owed me a debt which became due on a certain
lawful.for the creditor, of his own authority, to day, aIld I, fearing that he would abscond before
ent?r mto the posscssion of the thing pledged that day arrived, caused him to be arrested on a
until there has been some delay on the part of nctitious demand, in order that while it was in dis-
t?e borr~wer, to conform to the. principal obliga- pute, the day ofpayment of the real debt should
tIon on his part, unlcss there eXIsts a suspicion of arrive, for which he might be arrested, it is well;
his being about to run away, because those things which are null, not from de-
" A merchant became bankrupt and abscond- fect ofsubstance but ofform, may afterwards, by
ed; one creditor was prior, in point of time, to the intervention of the true debt, be continued,
the others: he is to be prefelTed to the others and the party is not to be arrested anew. But Bal-
wh~ are po~terior and whose day had now gon~ dus maintains the contrary, on the ground that
by, I~ therc IS any danger in delay as to thc pro- a case which has not a legal foundation cannot
sec~tlOn of the pledge-nay he is to be prefer- be supported by any subsequent event: and
red III the pledge. And althouffh therc should Paulus. Paris. at variance with hims-elf, says, that
be n~ .a(ljudication ?f the debt ~n that day or in the first place the arrest is to be declared void
~o!lditlOnally, :ret still there is ~ood caUie to pe- and the person is to be restored to liberty; which
tItIOn ,for secm'lty. Peck. de Jure sistendi. cap. being done you may afterwards begin anew ac-
.1.. n. 6. cording to law;
, The debt f~r which a person or thing was ar- But Peckius dejUi>e sistendi. cap. 17, says, if
Iested was vOId; but the person arrested either it maIlifestly appear that the arrest was not le-
gally made, it is to be declared void, and the per-
. [" The editor ofthis last edition has collected a quan. son at whose instaIlce it was made is to be con-
t.\.ty of matter in this. note, mark.ed [" "] w~eh is wholly
~I~el~vant t~ the subJeet of Admiralty praetICe,and whieh dernned to pay costs aIld daIllages: but, on ac-
alo? IS ~o dlft!eult to be translated, tbat I should have count of the new debt whIch intervenes, the
onlltted It. entirely did I not feel myself pledo-ed to o-ive
a translation of the fifth edition.-T,") " " debtor is to be detained aIld not released.-.
K
66 Pmctice of the Coart of Admiralty
Judge, and' in penalty thereof they are to be de- being in the hands of the aforesaid person, are to
creed to have incurred the first default, and the be il.\cluded. These words are omitted in the
certificate of this decree is to be continued until case or warrant which was bcJore mentioneu.
the next Court day, or other day to be assigned
by the Judge. TIT. 33. The certificate of the aforesaid 11'a1'-
rant against goods J'emaining in the possession
TIT. 32. The mannel' of attaching goods or of another.
debts in the hands ofothers, to which the officer
cannot h(JfVe access. THIS "'Tarrant is to be certified as the former
one which was trea\ed of in Tit. 6. and the per·
SOllIETIMES the person, who, by loan or other sons who are cited, whetller in general or in par-
maritime contract, is indebted to another, cannot ticular, are to be accused of contumacy and pm,
be approached so as to be arrested; nor has he l:eedeu against in all things, as well as to the
any property which the officer can attach. Yet contumacy of the persons in particular as of those
you may be informed of persons in whose hands in general, according to the directions contained
there are O'oods which belong to your debtor, or in Tit. 3L rif the exhibition orjudicial introduc·
who may "be indebted to him. In such a c~se. tion of the aforesaid Warrant, and ofthe Petition
you may obtain a 'Varrant similar to that which . of the Praetor for the Plaintiff.
is mentioned in Tit. 28. of other manner of pro-
ceeding, &c. And the officer may go to the'per- TIT. 340 Of the manner ofproceeding upon the
son in whose possession the goods are dep.oslted, appeamnce of the person in 'whose hands the
or who is indebted to your debtor, or which are goods were attached.
liable or responsible to your debtor*, and attach
ALTHOUGH the person upon whom the attach·
See Malines Lex Mercat. c. 18." [I'believe this book ment is served may not have any goods in his
isof no authority iu questious ofpraetiee.-Tr.]
* For the debtor of a creditor 15 the debtor to ~e ere· possession, yet 1Je is bound to appear on the day
ditor of the creditor. Sichard. ad L 3. Cod. de hIS 'lure
vi metusve causa, &e. n. 8. et ad I. 2. Cod. Quaudo him. Et vide L. uk Dig. Lib. 18. Tit. 3. De lege Com·
Fiscus vel privatus. "\Vhere it is held that ~ s.entenee missoria
rendered ag-ainst one who i~ indebted to mc! If It he not
paid, may be enforced agam.t onc who IS mdebted to
72 Practice of the Court of Admiralty On the Instance side. 7B
assigned, and to allege that he had not any goods TIT. 35. The granting of the second, third and
01' debts belonging to D. at the time when the fourth default.
writ was served nor since, nor at the present
time; and that it is not by means of any fraud IN the easeS which have been mentioned, the
nor collusion that there are none in his posses- process is against the goods 01' debts attached;
sIOn. and when neither he whose goods arc attacl~ed
If he make oath upon the Holy Evangelists nor any other person appeaI:s, the pl.'Occedmg
of the truth of his allegations, he is to be dismis- is to be acrainst them m pam of theIr cont~
sed and all the acts of the plaintiff are to no pur- macy as w~s prescribed in :Tit. 30. of the exh.l-
pose. But with this proviso, that if the plaintiff bition or judicial introductzon of the aforesmd
before the oath is administered,*' be willing to 1Farrant. In the same manner as they are pr?-
allege and take upon himself the burthen of prov- nounced contumacious on thc first day ~nd m
ing that the person has goods, or debts, &c. he punishment thereof are declared to have Ulc~
is to be admitted to do so, and if he make out red the first default; so, on the se~ond d~y their
his proof, he should recover them with his costs. contumacy is to be accused, and 111, pUJ?shment
And note, that in this case the garnishee, in whose , thereof, they are to be declared to ha:ve mcu:red
hands there appear to be goods 01' credits be- the second default. Also the certIficate. IS to
longing to the defendant, is bound to respond to be continued to the next Court day, or thIrd or
the plaintiff in this action, and to produce fide- fourth Court-day, at the pleasure of th~ Judge.
jussory security to all the effects mentioned in But on that Court-day, the pl.'Oceedmg and
Tit. 12. of the introduction of fidejussory cau- prayer 'are to be in the same lllanner as above,
tion by the defendant, and of the stipulations and he and the others are to be declare~ to ha,:e
which are to be entered into by them. And on incurred the third default. The certificate IS
the contrary, the plaintiff must give security as also to be continued to the above Cou,rl.day,
in Tit. 14. qf the production of security on the and on that day the SaIDe course of praymg, ac-
part of the plaintiff; then a libel is to be given cusincr and pronollllcing is to be pursued aIul aU
and in all things the proceedings are to be the who have been cited are to be declared to have
same as in ordinary maritime causes which al.'!; incurred the fourth default.'" The Proctor for
instituted, directly for debt.
-;;-;OUl' defaults are to be pron.ou!'ced against tl~e de-
.. For that being executed, quere whethcr it is lawful feridant,if he do not appear WIthin the term aSSIgned
to prove the contrary? to him by the Judl;'e, belore .the Judge shall de~ree the
laintilHo be put m possessIon of tbe. goods of the de-
fendant, which is contrary to the .anclent. usage of~.te
Court of Admiralty. Houghton zn fine 1D ~iJg. I.
Adm,
L
On the Instance side. 75
14. Practice of the Court of Admiralty
Then the plaintiff or his Proctor shall give a
the plaintiff should then ex superahundami accuse bill of costs which the Judge shall tax: And
the contumacy ofall the persoos who have been being made by the Proctor, or the
upon. . oaalthif he be present m. C ourt 0 f the di s-
cited as well in particular as in general ; and in prInClp . ~• __ " .>-- _
pain of this contumacy should say, after this bursement of the sums as laxeo, ue "''',y .u,,\O":;"
manner: the goods or vessel attached to be apprmsed.-
" I give an article upon the first decree, and 'Vhen the appraisement has bee!1 made accor~
I allege, pray and do, &c. as is contained in the in to the true value, and secul'lty has been gl-
same; and I pray that the same be admitted V~l by the plaintiff to answe~ anyone havmg
that justice and right be done and administered: interest in that behalf, that IS, In th~ g?ods, pro.
and t~at.a decree Jilass in favour of my client, to 'd d he intervene for the same WIthIn a year,
put him In posseSSIOn of the goods which have ~e ~s to be put into possession as.far as the
been attached according to the first decree." amount of his claim, if they b,e ~ufficlent, other-
The judge shall then order proclamation to be . wise as far as they may be suffiCIent.
three times made, for all the persons cite d as
aforesaid, as well those in O'eneral as those in
particular. Upon their failing to appear, he
-
~hall'pronounce them to be in contumacy and AnDl'rlONS TO TITLE 35.
In pam thereof, he shall say, "We admit this
article." [The effect of the first decree, is only, !n the
Then the plaintilr or his proctor, in snpport of first instance, to put the party in pOSSeSSIOn of
the contents of the article, that is, in proof of ' the thing and gives no power over the proceeds.
the e~st.ence ofthe debt.which he claims, ought AIl further proceedings of sale and power o.ver
to exhibIt the letters obligatory or other instru- the proceeds, must be by subsequt~nt appl~ca
ments upon which the debt arose. And the tion to the Court; although upo~ such apphca·
principal party or sometimes the Proctor, ac- tion a decree of sale and posseSSIOn of the pro-
cording to information which he believes to be ceeds are almost matters ofform and usually ob-
true, is obliged to make his corporal oath;'" to be tained as ordinary process of cours.e. .2 Bro.
administered to him by the Judge of the truth Civ. & Adm. 40S.~Tr.]
of his claim. This being done, the Judge is ac- After the fourth deC.·wlt, the Judge should de-
customed to read the aforesaid article and say, cree a mandate of execution, and he should
" We pronounce and decree according to the . ue his decree to the Marshal of the ~ourt,
lSS I . tiff' II of
prayer of the plaintiff." directing him to put the p am III possessIO ,
the goods of the defendant, wheresoever the~
• In debitis minoribus Vid. Tit. Prax. Eee. 235. 236
per Ought.
76 Pmctice of the Court of Admiralty On the Instance side. 77
may be found, to the extent of the debt claimcd what contract the .debt which is claimeJ by Inm
and declar~d for in Court, if they be sufficient, was become due: and in his conclusion, he
togethcr wIth costs and damages. And if bona must pray that right an~1 justice be done, 3;ml
mobilia to such a value are not found by the thathe be put in possesslOn of the goods wInch
Marshal, then to put him in possession of the have been attached as far as they are sufficient
bona immobilia to a sufficicnt amount in order to pay the debt which he claims.
that the defendant being affected by the griev-
ance, may be compelled to answer within the TIT. 37. Of the manner of proceeding if the
~ear and recover. the possession of his goods, at person appear to whom the goods which have
1lrst duly valued m the pr"sence of the Marshal, been attached belongs.
and warranted upon thIs obligation in Court to
bc suffic~cnt t~ abide the sentence and to pay As it often ,happens in civil actions, that a per-
the sum III which the party was condemned and son is arrested who is not indebted to the plain-
having given sufficient satisfaction for th~ ex- ~ tiff, so likewise may goods be attached when
penses sustaincd on thc part of the aforesaid , nothing is due. In such a case as soon as you
party, as Cod. 7. Tit. 72. de bonis authorit. Jud. are apprised of the attachment, it behoves you
pass. &c. auth. Et qui jumt. Collat. 5. Tit. 8. to appear, lest the course which is prescribed
Novel. 53. de exhibendis et int1'oducendis Reis for obtaining a default should be adopted, and
cap. 4. &c. Decretal. Lib. 2. Tit. 6. de Litis in painoI' your contumacy, your advers~ry
~lOn cOlftest. c. 5. quoniam frequenter. But if it be put into possession of the property ex Pl'l1IlO
IS mamfest, and the suit was not contested the decreto.
proceeding is at an times to sentence and n~t to If you introduce fidtjuss?l'Y se~uri~y to all.
defaults. Roughton in .fine. the effects which were mentIOned III TIt. ]2, oj
.If he appear not before the time be fully ex- the introduction of fidpjllssory security by the de-
pIred,. the JUdge may proceed and adjudO"e the fendant, thc attachment is to be dissolved and
proprIety of the ship to the plaintiff. Welw. the goods are to. be delivered to you. ,
Tit. 5. f. 60. The plaintiff is obliged to put III secunty, file
See Maline's Lex :l\!Ierc. c. 18. his libel, establish his claim and proceed, in th.e
cause in all respects in the same manner, as If
TIT. 36.. What things are contained in the the causc had been originally instituted against
aforesaid aI,tide upon the first decree, tlle person of the debtor. Yet i.f yOIl are pro-,
nounced in contumacy and have Illcurred any of
THE plaintiff is bound to declare or relate in the defaults, before y Oll have intervened for
the aforesaid article, in what manner and upon your interest, it is necessary for you to pay all
78 Practice of the Court of Admiralty
On the Instance side. 79
the expenses which have been incurred, before
~our goods are delivered, or you can be heard TIT. 89. Of a third person interveningfor his
III the cause.'" interest after thejirst decree!/!
TIT. 38: Of the appearance of a third person A third party ilitervening for "tdS interest
to clazm goods which have been attached as the after the first decree has been pronounced, is
property of another. not to be heard, as was said before in Tit. 37.
unless the costs as then taxed be paid. and then
IF your goods a::e attached as the property, the interest is to be propounded and alleged,
or for th~ debt of another, and you intervene and fidejussory securIty is to be given according
for YO\lr mterest before the promulgation of the to the efiects which were mentioned in Tit. 88.
first,jdecree; and yet nevertheless, the Judge of the appearance of a third person, &c. As
shall have pronounced yon to have incurred any the person who would have had the goods
of the defaults, the costs of these defaults must upon the first decree, introduces another fide-
be I;Jaid ~efore YO~I c~ be heard, as in the pre- jussory security at the time of pronouncing the
ceding TItle. This bemg done, your interest is first decree, as in the conclusion of Tit. 35. lIe
to b~ p~opounde~ and alleged,and fidejussoryse is b0!illd only to give security for his appear-
cunty IS to be gIVen b:y you to abide the judg- ance from time to time, and at the hearing, to
men!, to pay the costa III case you fail in sup- submit to the sentence, to pay the costs and to
portlllg your claIm,_ ~d to ratify the :u:ts ofyour confirm the acts ofhis Proctor.
Proctor. !he plal?tilf must also gIve fidejus- But in the same manner that the Proctor for
sory s~curJty to abIde the decision, to pay the either party is discharged from his office, and
C?sts If you proceed, and to ratify the acts of ceases to be the Proctor when the definitive sen-
his Proctor. During the litigation of the cause tence is pronounced, his office may -also termi-
the goods are ~ept under the arrest or seques~ nate as soon as he obtains the first decree, and
trated. An~ if you prove your interest they the principal is put into possession of the goods,
are to be delivered to you, and the plaintiff must &c. Thus the person who intervenes for his in-
pay the costs; and, • contra if you fail they terest in this way is obliged to summon the prin-
must be paid by you. '. .cipal if he be alive, or his fid~ju880res who are
. bound for him, as above, to answer whatsoever,
.'" The. expenses of this sort of contumacy are uncer- &c. as above in Tit. 85. to show cause why he
tam, for If you .be pronounced to have incurred one de- should not be admitted topropoundfdr his inter-
fault, 0!1e. sum IS ~o be paid, and if you are in many de-
faults, It IS to be mer.eased according to the number of
those defaults. '" De tertio interveniente Vid GaiL Lib. J. obs. 69.
ot Sequent. per totum. Peckius de jure sistendi. cap_
40. per totum et nu. 10
On the Instance side. 81
80 Practice iYf the Court of Admiralty
TIT. 41. The manner of arresting your own
est in certain goods which were lately taken goods when they are detained, occupied or pOB·
under a first decree, as the goods of such a per- sessed by anotlier.'"
son; and he is to be admitted to defend his in-
terest in this manner. If the persons who are It often happens, and especially in time of
cited do not appear, a \Varrnnt is to issue for the war or commotion, that your goods or vessel are
attaching and arresting of them until they do taken by enemies or pirates, and afterwards
appear_ But if they have appeared, the third brought to this kingdom; or are possessed ill'
person ought to be admitted to prove his inter- detained by others in some other manner; 01'
est, and the proceedings are to be in all things, the factor or agent of your correspondents in
as in ordinary cases. parts beyond seas, may consign certain goods to
your use or benefit, and they arc detained un-
TIT.· 40. That the plaintiff may obtain a first justly possessed by some person. In such ca-
decree, as well against the person to whom the ses you may obtain a "Varrant to arrest the
goods which are.attached are alleged to belong, goods after this manner as your proper goods:
as against all others who do not appear. and also a citation as well against those in parti.
cular thus occupying or detaining, as against all
ALTHOUGH a third person intervene {or his in- others in general, who have or pretend to have
terest in goods which have been attached by any interest in them, to answer you in a certain
you, as the property of another who IS in your cause of a civil aJId maritime nature. \Vhich
debt, yet you may proceed and follow the afore- Warrant being executed and retw'ned as above,
said arrest, in the m~nner prescribed against in Tit. 33, if no one. appear, the· proceedings
your debtor, and agaJnst all others. And in are to be in all things as above, Tit. 31, and
pain of his contumacy and of those who are after the fourth default, the goods are to be ad·
cited in general, excepting the person who has jndged to you; not for a dcbt as in the former
appeared, you may proceed to defaults and ob- case, but the decree is to bc that in pain of the
tain a decree for putting you in possession of contumacy of those who have not appearcd, the
the goods, quoad those persons who have been goods belong to you, and being. your property,
declared in contumacy. But the goods are not yon are to be put in possession of them. .
to be delivered to you durmg the controversy '" Si bona fuerint in aliquil nl1vi vel intrl1 jurisdicti.
between you and the third person who has in- onem admiralli; ireo et si sint in ten"am exportata, et in
tervened for .his interest. cellario imposita. N 11m et person'" passunt cl1pi in ter·
ra, in excambio vel alibi, et arrestari, et hoc fit quotidie.
Vid. Brooke's Abridg. Tit. Admiral §. 1.
:M
82 Practice of the Court of Admiralty
On the Instance side. 83
ADDITIONS '1'0 TITLE 41.
if, summarily heard by the Judge of the High Court
[This Title, and the two immediately follow- 'if !,;/o! Admiralty, without adm!ttin/5, any unnecessary
ing, are the only sections iIi this whole work, that :~ ;,:delay. Rob. Collect. ~IarIt. 2? . . . .
1'1'.13.t" to a Droceedimr which may be called pro· . , I' !;;l""h;. tlip n,..;mn of th" nrlze mrIs[!IcflOn of
p~~i'y and directly il~ rem, that is, a suit agiinst\~lth;iii~h'C~~t~~f"Ad~i;~tY of England. At
<foods or affects which the actor claims to be hisJ: '~I;the time when onr anthonr wrote it was merely a
property, or to be entitled to seize or possess by ":'Civil Court of Instance; and therefore we mllst -
virtue of some lien express or implied; forthe } ~,nllt be astonished at not finding any mention of
attachment of tlle goods of absent debtors, bee': -"its powers or practice as a Court o~ Przie.. ~t
ing intended for the purpose of compelling an}~ ;I',appears, however, that it took cogl11zanee, ~n~I
appearance, m~w be considered as a suit qUlIsi~j ~~lIeDtany, of matters whic~l are now clearly ;vlthm
in pers07lll1ll. Here, then, clearly appears the'~ i,,:the jurisdiction of Admiralty Courts, as m ~he
lalSIty of the maxim which has so long prevail- , ~\;case which is mentioned in the text of EnglIsh
cd in the Courts of Common Law, that the juris-.· ;;" vessels taken by enemies, and afterwards broul-iht
[hetion of the Court of Admiralty was merely in !Nioto England. The'property to these was. often
rem. It is to be lamented that the blind jea- ; ! disputed on various grounds: s~~h as theIr not
lousy of those Courts ,vith respect to this pare, having been brought in!~a prresl.dlll of the cap-
ticular juridir.ature, has often carried them be- ! tors, and other similar pomts, whICh fro.m the old
yond the bounds of justice and even of truth. prohibition cases appeal' to .have been, m former
Vic!' 3 Durn. & East. 348. times, very much litigated m the Court of Am-
It is remaj'kable that rio notice is taken in tlus miralty; and the Courts of Common Law.s~o~,,-
title of vessels or goods taken by English sub- 0: ed a dispo~ition,. more than onee, .to yrolntllt Its
jects of their enemies. TIle fact is, that until proceedings in eases of that descrlptlOn. Even
the 44th year of Elizabeth, the prize jurisdic. so late as the 9th year of \Vj~iam ~Il. Lord
tion was not vested in the High Court of Ad- Holt ancl anot!Ie.r Judge were 01 opmlOn ~h~t a
miralty, but in a Board of Commissioners, called prohibition should go to a suit by the ~I'lg~nal
., The Commissioners for causes of depreda. owner of a vessel taken by the French ll1 tm~e
tim!s." But in this year, (1602) the Queen is- of war and carried into Bergen in Norway, m
sued a proclamation for the purpose of repress· which the principal question was, whethel: she
IlIg depredations upon the high seas, by the third had been legally condemned. SheN~olilm v.
article of which she ordained, " that all admyrall Sl1nds. 1. Lord Raym. 271. At that. tll~e,. s~ch
ca~s:s, (except those depending before the Com- a suit was considered as within the JunsdictlOn
InISSIoners for causes of depredation) should be of the Instance, and not of the Prize CoUl'~; for
the appeal from the Court of Admn-alty, m that
84 Practice of the Court of Admiralty On the Instance side. 85
c~se was ~arried to the Delegates, as in an or- per person or by another in your name and
dIJ.!-ary sUIt, and not to the Lords of Appeal in for your use, were in possession of th~m at the
PrIze c~uses. Lord Raym. ut supra. time of the arrest, you may appear In person
. But ~n .recent times, we find that cases pre- before the Judge, or your Proctor may allege as
Clsely sllnilar have been determined, not in the follows:
Instance, but in. the Prize Court, and the appeals "I exhibit my proxy literally [or N. and I make
have been carned to the Lords of Appeal as in myself a party to the same and to all in .~)etter
other cases of prize. The Hendrick and Maria. right, &c.-moreover I aIleg;e to ever.y eRect m
4. Rob. 35. Am. Ed. 43. Eng. Ed. 6 Rob. 188. law, that at the time of the mterposItion. of the
Eng. Efd. Same case, on appeal; and see Ro- . arrest, my client was in peaceable and ,lJUIet pos-
bmson s Reports, passim. session of the goods attached not by lorce, con-
It is evident, from a passage in this title that cealment, threats, nor at the will of another.
the Court of Admiralty, at the time when Ckrke And therefore I pray that possession of these
wrote this ?raxis, h~d, or at le~st took, cogni- goods be decreed to my client in prefercnce to
za;nce of ,bIlls of ~ading and freIght. It is cer- all others, and that he be maintained in rus pos-
tam that lD all theIr contests witlJ the Courts of session; that the attachment which was intel'-
Common Law, tlJ~y invariably claimed, among posed by others by th~ a~thority of the Court
others, that particular branch of jurisdiction. be dissolved, and that Justice and rIght be done
But it was at length wrested from them, and and administered."
they have been obliged to acquiesce. It does If the plaintifJ: at whose instance the attach·
~ot seem, ,however, to have been disputed dur- ment was made, denies thesc allegations, they
mg the reIgn of Queen Elizabeth; for our au- are to be considered separately and conjointly,
thour appears to consider it as a part of the re- and a time is to be assigned for proving them.
gular and well established jurisdiction of the Yet it is expedient that a protestation be made
Court.-r-1'r.] by you, that it is not your intent~on to proceed
by petitory but by possessory tItle. A~d the
Tl'l'. 42. The manner of proceeding in posses- plaintift' who hath attached thc goods as his pro-
sory andpetitory actions." perty can allege himself to have been and to
If your goods have been arrested as the
be th~ lawful possessor, and in the possession of
these goods, and make his replication as follows:
-
property of another, and you, either in pro-
[" .flo. petitory action at Civil Law, is It suit in whieh
~he l'1~ht of. property is in question: a possessory suii
Thus an action of eiectment at Common Law, is within
Jhe ]a'ttcr description, while a suit of right is comprized
'within the formel·.-Tr.]
I. that lD whIch the rIght ofposse.sion only is contested.
On the Instance side.
Practice of the Court of Admiralty
the proof which was exhllJited in the possessor)
. "That so fal". as the aforesaid N.'" was at ,any action, bccause he who has succeeded in the
tIme de facto In possession of the aforesaid former will probably succeed in the latter; yet..
goods, the same possession was obtained and is in further confinnation of his right in the afore-
held by force, violence, threats craft fraud or said goods, the person who succeeded in thl:'
at the will of another." " , possessory action may proceed to a petitory ac·
And that allegation is to be proposed sepa- tion and obtain sentence in petitorio." But he
rately and conjoi~tly; and the same being ad-' is bound to file a libel de novo, and if the wit
mltted on both sIdes, the proceedinO' is to be nesses who were produced in the possessor}
poss~ssory, and upon proving the sam~, he shall shall not support the right of the party in the
obtam the possess!on of the goods attached, al- .petitory, he is at liberty to produce others. But
though the ~foreSaJd allegations were put in ge- if the complaint of the plaintift· was suftieiently
nerally, whIch mode. is to be preferred. Yet it is established by the witnesses who were produced
lawful for the partH?S to specify and declare in the possessory action, and the proceedings in
these general allegatIOns according to the truth that cause are exhibIted'" in the petitory action
and fact of the case. they shall have full faith and credit. And the
But this i~ to be noted, that before the party defendant may do all things, if not satisfied with
shall be put III actual possession of the aforesaid the sentence in the possessory, he shall procecd
goods, they ar~ to be appraised by ordel" of the
Judge, aecordlllg to their true value, and upon [" Formerly, and particularly at the time when this
work was written, the Court of Admiralty of England
p~oof of the appraisement, the party who ob- had cognizance of petitory suits for ships when the right
tam~d the posse~sory decree is to be bound in of property or ownership thereof was in controversy.
~deJuss~r'y SeCUl'.lty, to answer the adverse party See the case of the Aurora 3 Rob. 114 Am. Ed. By
successive pr9hibitions it had been restricted to the en·
m a petItory action-that is to say, he shall be forcement of certain maritime liens, such as h~·pothe.
b~und .to resto~e the aforesaid goods without cations and mariner's wages; but the ...c\.clmiralty Court
'.\ a~te, III case hIS adversary shall succeed in the still entertains po~sessory suits for ships and vessels in
certain cases,.such as bet'\veen part o,vners, ':2 Bro. eiy.
petitory cause: and also to abide by the sen- & Adm. Law. 406. And in some other cases, of which
t~nce, to pa;r the costs anc;l to ratify the acts of instances may be found in Robinson's Rep01't::;.
his P:oe~()r III that behalf: this, at least is to be But in those cases the Court will not decide the qucs·
tion of property: and in passing a decree on the right
~on~ If hlH a?versary shall have prayed proceed. of possession, it will look only to the clear legal title,
mg~ III a petitory action, or shall have protested without taking notice of any equitable claims which
agamst proceeding in the same. must be enforeed in other Courts. The 8m,,'s 5. Rob.
Adm. Rep. 144. Am. Ed.-Tr.]
But allowing that the adversary is unwilling to • For the records in one judgment are proof in anO
~ed to the petitory action, on account of ther. Gail. Lib. 1. Obs. 103. in nne.
... He who intervened for his interest.
88 P1'actice of the Court of Admiralty
On the Ilistance side. 89
to his petitory action. And ifhe succeed in that
cause, the aforesaid goods are to be alljudged other oppose it, if the premises be made appa-
to him and his adversary is to be condemned to rent to him, may decree that the goods shall be
pay the costs which have been incurred. In valued by skilful and impartial men, named by
~h;", ...... ~t~rr.n ... T .r:>r>f; ..... Tl +h~ -nT"F"l.r>.:u:.. l;Tl ......., ~T"p. tn. hp
LIll':' P~".l"'\~·.l J "..'-' ....l~.I.l .. .l.lV 1'''" 'V'"-''-''-' .... u'.l.l5'''' ....." ...... 1o'V'
in
IV ..... .l.LA the parties al1.d approved by the Judge. The
all things as in other maritime causes. And value of them is to be deposited with the Judge
note, that the plaiutiff,* before he is admitted to or his Registrar for the use of him who may suc-
propound for his interest in the petitory action, ceed in the cause.
is bound to give fidejussory security to prose-
cute his cause, to pay the costs, to ratify the acts TIT. 44. The arrest of goods by different C1'e-
of his Pl"Octor, and to submit to the sentence. ditors.
But although it is said above, that he who obtains
judgment in the possessory action, is held to give IF anyone be indebted to divers ~erso~s,and
fidejussory security for the restitution of the different Warrants are sued out agamst lus pro.
goods without injury; yet if they are in danger perty, and if the same be attached for the pu:,
of perishing during the pendency of the peti- pose of securing the payment of these debts; .)~1
tory action, they ought to be valued according this case, if the goods thus attached.' be not s.uffi.
to the directions in the following Title. dent for the payment of an tllC cre«;litors, h~ IS to
be prcferred who instituted the first actIOn or
TIT. 43. Sequestration of the goods pendente procurlld the aforesaid goods to be attached, amI
lite. Vid. Gler. Prax. Eccl. Tit, 189. peT he shall obtain the first decree of the Judge to
Oughtonum. put him in possession. .
Also this same order and form IS to be ob-
\VHILE the cause, whether it be petitory or served respecting the other credito.rs,_ if any pro-
possessory is in Court, the goods are to be se· perty remain after the first creditor has been
questrated or. kept under arrest, and delivered to
the custody of some one who stands indifferent
Paid, a1thouO'h
" there be not sufficient to discharge
all thc claims.
between the parties. But if the goods be such
that they are liable to illiury by being kept, or TIT. 45. Of the oath of calumny and what
be otherwisll deteriorated in value before the clauses are contained in it.
lktermination of the cause, the Judge, on the
petition of one of the parties, although the OF the oath of calumny and what clauses. are
contained in it, read the title 151, in Clerke's
" He who fu'st attaehed the goods, Practice of the Ecclesiastical Court.
N .
90 Practice of the Court of Admiralty On the Instance side.
the causes in the petition mentioned." 2. Laws of the term allowed for supporting the general
Penn. ~8,j,. Dallas's Edition.--3'r.] exceptions.-11'.]
T.~
.... .1 ~.
A.I'-
":W:'H.
'7'l.h ~~
...
If .
"~ .fI' 0poSlng
ma....er l rence if
OJ.r UJ () TIT. 47. The suppletory oath
j
Then the Judge shall assiO"n a time to hear Supplet01~lJ oath. Indeed it is classed witllin it,
the parties and decree thereo~. And ifhe shall in the civil law countries where tradesmen's
be satisfied, ~h~t the party who prays to have debts are proved in the same way. Vjd. Fer·
the oath adnnmstered to them, has made more 1·ie1·e Diet. verbo Serment.
than half-proof, or at least, half-proof of his al- 1ne administration ofjustice in different C011Jl-
legation, he is bound to administer the oath to tries does not differ so much, as at first view it
him ill those cases in which the law permits it ; appears to do, for justice and right are nearly
consult, however, with expeJ:ienced practition- the same every where.-Tr.]
ers, as to what those cases are. Then the party
shall make oath, "that oj his OWl! certain know- TIT. 48. The exhibition of instrument.s in .sup-
ledge the Jacts stated in his alle~'atiol! are true." port oj the allegation.s oj the parties.
. If, however, the party against whom the oath
JS prayed, should be proved by his adversary OF the exhibition of instruments and the alle·
to be a person of infamous or bad character th~ gations that are necessaryr in that case, the man
oath is then in no. case to be administered to him. ner Of answering the same by Proctors and prin.
Clerke ut sup cit. 256. cipal parties, of the forJU of setting them forth
.As boY the Civil Law, the testimony of one pro conJeS3is when they refuse to answer, or do
WJtness .JS ~ot sufficient to constitute full proof of not answer fully, read Tit. 104. 105. 106. 72.
a fact, Jt IS necessary sometimes in such and in 73. 74. 298. 299. concerning these matters iII
other cases, when there would otherwise be the Prac. Bcc. per OughtonulIl.
manifest injustice, to complete the proof by the But note these variations.
oath of the party. This is, what is called the If the Proctor for the principal party refuse
suppletory oath. Thus, at Common Law, when to take the oath to answer, or faithfully to dis·
a tradesman produces his books as evidence of pose touching the libel or other matters propos-
a claim for goods sold and delivered, or work sed, to which by law he is bound to depose; the
an? labour done and performed, the books not Judge may commit them to prison on account of
bemg of t,hemse!ves, sufficient legal evidence, this contempt, until they have taken the oath.
the partJ;' IS .a~mltted t? swear that they are his Or he may warn them to take the oath by iin-
books of ongmal entrIes, that the entries were posing some pecuniary fine, and if at length th~y
ma?e f:Url)', at the. time, &c. and that the money still refuse, he may pronounce them to have Ill-
which IS charged IS justly due to him. In this curred the penalty of the fine, and may order
manner the proof becomes complete, and the them to stand committed until the same be paid.
oath which is administered to the tradesman,.
comes completely within the description of the
96 On the Instance side. 97
Pracrice of the Court of Admimlty
TIT. 49. The comparison of letters. Then the Judge shall swear some one who is
good and true, and skilful in this matter, and
I:IKE.wISE of the form and manner of. pro· shall admonish him according to tIle prayer.
IF the i?strument or other writing which is contained in the aforesaId instrument are true,
produ,ced I.n proof of the allegation on one side, and were treated, carried on and done, as is
?e wrItten ~n any of the aforesaid languages, 01' contained in the same, and that the copy which
~n any foreIgn language, the Proctor by whom it is exhibited is faithfully translated and agrees
IS produced shall say: with the originaL"
" In support of the contents of the libel which This allegation is to be stated separately amI
~as been filed in my behalf, I exhibit a certain the same being admitted, the ProctOl' who exhi-
mstrument written in such a language;* and I bited the ~trument, shall mal(e oath that he has
pray. that some.one skilled in that language, and faithfully propounded the instrument and allega-
also. In the EnglIsh tongue, be appointed to make tion, and he may pray that the Proctor on the op-
a faIthful translati?n on oath, by such a day, and posite side be put on his oath faithfully to answer
that he be admolllshed to exhibit as well the ori- the same. This oath the Proctor must take and
gmal as the translated copy on the same day." he is bound to make oath, according to his be-
lief, immediately, or at the next term if it be so
'f ~ But whether the translation shall he taken without prayed. And 'if the Proctor answer tha~ he
urther eVlde!'ce. Vid. Gomez. Resolut. tom. 2. Ca . 9.
uu. 5. et Farmac. de testibus, Lib. 2. Tit. 6. qures/63. does not believe these allegatIOns, a decree IS to
~u·f4? [1 pr~sume the translation would be deemed to be prayed and passed, for the personal answf'J'S
e althful untIl the contrary were shown.-Tr.] {)
j/SS"5'
On the Instance side. 99
~J8 Prllctice of the Court oj Admiralty
Privatc
instruments'
r .1..A ccounts.
of the adverse party. This being done, the are such
are made asJ "
/.I,
PrIva
' t e I nventorles
. or R '
eglsters .
.Proctor shall say:
" I pray that a copy of the translation of the without any
solcmnit. I rlvat e I e tt ers. b e t
3 . p' ' one rJrICllf
WIXt
and they~;e , ~_o~her, one tradesman and anothet'.-
. I antI
instrument be reg-tistered , and UDon
• th~C!
~"" hplnIT
................wb
done that the original be returned, and that the either L."'. J
registered copy may have as full faith and cre-
dit as the original." TIT. 52. The conclusion oj the cause and the
Then the Judge shall say, "We decree as is manner oj giving injot'1Jlation to the Judge be-
prayed." But the Proctor should take care that fore pronouncing the sentence, and the manne/'
the original instrument remain with the Regis- oj pronouncing the same.
trar, in order to enable his adversary or the OF these matters read the titles de inforlJlu,
Proctor of his adversary to make., answer. tionibu8 Judicia dandis, et de jorma pmlationis
sententire in Causis Ecclesiasticis Tit. 122. 127.
121. 11,.1<. 117. per Oughtonum, in which these
ADDITIONS TO TITLE 51. things are specilied and particularly treated.
~Instrumentsare for the most part two-fold, TIT. 53. OJ an appealjmm the drjinitive sen·
(scll) either publick or private.* . tence,
But of the manner and form of interposing tel' the pronouncing of the decree as by statute
these appeals, read the titles 289. 295. 274. in England, or ten days according to the rule of
275.290.291. 294. 292. 293.276.277. de ap- the Civil Law? Again, if the decree should be
pellationilnts in causis Ecclesiasticis pel' Oughto, pronounced the very day before the first day of
num. the sittllllr"of the Circuit Court, a circumstance
* Yet q~ere whether an appeal from a sen- which otlen occurs, must the appeal be entered
immediately, )Vithout any time being allowed ]01'
tence in a possessory action will lie, because the
effect of that sentence may be counteracted in consultation and deliberation? Quere. In New
a petitory action, or by the same Judge on an York the appeal must be entered within ten
appeal from the sentence delivered in the peti. days or the decree may be executed. Reg.
tory action. Cur.-1r.]
By the Judiciary Act above cited, §. 22. a
writ of error, and not an appeal, lay from the
decrees of the Circuit Courts in Admiralty cau-
AUDITIONS TO TITLE 53. ses; but by a subsequent law, passed the 3d
of .Mar. 1803, the former mode of proceeding
[In England fifteen days are allowed to inter- by appeal is restored. 6 L. U. S. 315. The
pose an appeal, and the appeal must be entered Act does not say that the appeal is to be brought
within that time, Godolph. in Sea Laws, p. 208. to the next Supreme Court, nor withm what
This is by statute, for at civil law, ten days only time it is to be entered.
are allowed. By the law oftheUnited States, an New evidencemay be given in the appeal.
appeal from the decree of a District Judge must ib. p. 316.
be to the next Circuit Court, to be held in the By the rules of the Civil Law also, new evi-
same district. Vid. Judiciary Act, 24, Sept. dence may be adduced on an appeal, provided
1789, §. 21. L L. U. S. 61. An appeal is given it be relevant to the matters whlCh were alleged
only from final decrees. As the appeal is ex- in the Court below; because on the appeal no
pressly directed to be made to the next Circuit alleO'ations which are entirely new are to be ad-
Court, a variety of qJlestions may arise. It may mitt~d. Per hanc divinam sanctionem deccrni-
be asked, can the appeal be entered at any mus, ut licelltia quidcm pateat in ex cons~ltat~
time before the first day of the next Circuit onibus tum appellanti quam IIdversre Pl/rt~ novls
Court, or must it be done within fifteen days af- etiam adscrtionibus utendi; vel exceptioJlibus qure
non ad npvum capitulum pertinent sed ex illis
. '" On this question vid. Maraut. Spec. par. 6. act. 2. oriulltur, . et iIlis cOl1julletre Sllllt, qure IlJYl.ld an-
~t quandoque appcllatnr n. 305. Sc..cc. de Appell. q. 17.
1m. 6. nn. 36. 37. 38.
teriore,lIl judicum nosc1tntur propositre. Cod. 1.
7. Tit. 63. I. 4... -TI'.]
102 . Practice of the Court of Admimlty
On the Instance side. 103
Tl'r. 54. That it is not lawful to appeal from
grievances, or an interlocutory decree not hav- your ioterest, and that justice and. right be admi-
ing the tiffeet of a difinitive sentence. nistered upon your case: Here, If the ,Judge ta-
citly reject your ])rayer, by p:~eeedings con-
ALTHOUGH vou mav fue matter which is con- .....,,.v
........---J
~-
or nr"il1dicial
r--J---
to -your -petItIOn,
.-
as -by
.-
pro-
clusive against your ;dversary, -~r take conclu· ceeding to the first, second or thIrd default, so
sive exceptions to his witnesses; or within the that he may on the day ofthe fourth default ad·
term you shall pray a commission to parties for judge your goods to be tl~e property ?f .another,
the examioation of witnesses or the like, and the or expressly decide. agamst y~)Il, thIS IS called
Judge shall refuse to admit those things: yet it gravamen irreparabzle, and an mterlocutory de.
was always the practice,'" not to allow an appeal cree having the effect of a definitive sen,tence.
from such grievances, nor from any interlocu- Nor can you hope for any other sentence 111 that
tory decree which has not the effect of a defini. decree' and if io such a case, you neg.lect to
tive sentence. Because relief may be had put in ~ appe~* your goods will be adJndged
against such ioconvemencies by an appeal from to another." .
the definitive sentence; for in an appeal from So it is if your creditor sue you for a debt,
such a sentence, it is lawful to allege whatever and in order to defeat llis suit you allege that
has not been before alleged, and to prove what another action is pending against ,You for the
has not before been proved. same debt and before a compete~t ~rlbu~a~; and
the Judge either tacitly, by admlttmg SCIlicet the
TIT. 55. What shall be called an irreparable libel and proceeding in tl~c ca,us?, or expressly
grievance, and a decree waiving the tiffeet of should reject your allegatIOn, l~ IS lawful to ap-
a difinitive sentence, from which it is lawful to peal as above. For thesc evIls. ?annot be reo
appeal·t paired in an appeal fi-om a deflllluve sentence,
nor can any other sentence upon SUell matter~
IF anyone arrest your goods as the property
of himself or of another person, and you have -:Vide tamen Sichard..in I. 2. qo. Nc ~1". pro marit'
in prin. where it is said that executIOn .ugall.lst the goods
appeared at the proper time before the Judge, of another who was protested de jWC,.1S v~](1. . ,
and alleged your interest in the goods, and pI Brown, who takes Clerke for Ius ~Uldc m ma~tm ~
prayed to be admitted to interpose and prove of Admiralty, here int;o?uces a rule ,",'}uc.h d~!'crvco at
'on He ,avs it 's meumbent on the Ploetor! lihn
t en t I . J , h' I' I t pp al ell OJ"
• This practice is more agrrcable to the Civil Law as less otberwise direeted boy IS C \Cn, ". a. e [.' 'f I .
appears from Marantre Part 6. Act. 2. et quandoque ap- d t or before a N olary in script,s: or I It
pellatur nu. 303. . ap'~t ~~ :ppeal fcom a definitive sente,:ce and.an);. da
. 't Vi,1. Mar.ant. Spee. part 6. par.le 3. verb. ct demuffi :::~~: the nee ensue, he is liab!~ to un actIOn by Ins c ICllt
,erlm Sententm. n. ·1·2. 2. Bro. Civ. & Adm. Law. 4»7.-1'r.j
104 Practice of the Gourt of Admiralty
On the Instance side. 105
be expected. Read Tit. 123 Quod sit decretum
interlocutoriurn, &c. in causis Ecclesiasticis. ! deClree having the effect of a definitive sentence
in the Court of Admiralty, to his Royal Ma-
- jestyin hi~ Court of Chancery, so from all de-
finitive sentences, interlocutory decrees and
ADDITIONS TO TITLE 55. grievances, by whatsoever inferior Civil Judges,
or Vice·Admirals in the kingdom, it is lawful to
[An appeal from grievances is interposed appeal to the Honourable tIle Lord High Admi-
when WItnesses are supposed to be admitted or ral of England, and that eIninent man, the Pre-
r~jected improperly. Wesemh. parat. if. de Ap- sident of his Court of Admiralty, tIle Judge or
pell. n. 5. Deputy whomsoever he may be of tIle same
An appeal from an interlocutory decree or Court. For the Judge of this Court has juris-
from any thing but a final sentence, does not ap- diction over all causes of this sort.
pear, as we have already observed, to be allow- '
ed from a Circuit Court to the Supreme Court
of the United States. But, quere, will such an
appeal lie from a District to a Circuit Court? ADDITIONS TO TITLE 56.
In England whcre the appellate Courts arc con.
stantly sitting, there is but little inconvenience [By tIle Act of March 1803, appeals are al-
in allowing such appeals; but llere, the Circuit lowed from the District to tIle Circuit Court,
Courts sit only twice in a year, and if appeals from all final judgments or decrees. wllere the
, were to be brought from interlocutory, as well matter in dispute exceeds tIle value of fifty dol-
as final decrees, Admiralty suits would be with. lars exclusive of costs.
outerid. Perhaps there may be cases of irre- In the same manner an appeal lies to the Su-
parahile gravamen, where the District Courts preme Court from any Circuit Court or from any
would permit and the Circuit Courts receive an District Court, sitting as a Circuit Court in ca-
appeal, but they must necessarily be very few; ses of eqnity, of Admiralty and Maritime juris-
no instance of the kind, I believe, has yet occur. diction, and of prize or no prIze. But the mat-
red.-Tr.J ter ill dispute must exceed the value of two
thousand dollars exclusive of costs. This value
TIT. 56. Appealfrom the Court of Admiralty. may be proved by affidavit.
In appeals to tIle Supreme Court, no new evi-
INASMUCH as it is lawful to appeal from the de. dence can be received, except in Admiralty and
~nitlve sentence and the aforesaid interlocutory prize causes; and such appeals are subject to
p
I
or for any error in fact. W Tits of error must b~ appeal in the cause ofappeal.
?rought within five years after the decree which
IS complained of, is passed. But in cases of in.
fants,jemes covert, non compotes or imprisonment
-
th~y ~e allowed the same term after the dis~ ADDITION TO TITLE 57,
bIlIty Is removed.
In appeals a ?itation must issue to the appel, -, [Writs ofinhibition are not in use in the Courts
l~t, who IS .e~tItled to at least thirty days no- of the United States. The Courts below take
tIce; but thIS IS not necessary if the appeal be notice of the appeal, and of ,their own accord
prayed at the same term in which the decree abstain from further proceedings, and the par-
~as passed.· When the citation is necessary, ties do the same. Yet it seems that it would be
It. must accompany the writ or it will be dis, more regular to issue that process i~ all c~ses, as
mIssed. t But upon a suggestion that it was the party might otherwise be WIth difficulty
served, the Court will grant a certiorari. 3 brought into contempt, if he should proceed far-
~ranc~l ?14. No appeal or writ of error lies ther notwithstanding the appeal.-Tl',]
1ll a crnmnal case.:t-1},]
TIT. 58. Form of the execution and certijicate
TIT. 57. Of the inhibition of the appeal. of the aforesaid inhibition,
. O~ the interposition of the appeal, an inhibi. THIS writ of inhibition is directed to the party
tlOn IS to be pra'yed from the Judge, before appellate, and to all other persons in general, as
whom the ~ppeallS lodged as in Ecclesiastical In Ecclesiastical causes, But the party appel·
causes. VId. Cler. Prax. Tit. 307. 303. 304- late is to be arrested and detained in goal, unless-
301. 300. by Ought. Conset.PartV. §.l. And he put in proper fidejussory securit;v for hi~ !e.
gal appearance, as in Tit. 4. of the mterposztzon
" 2 Cranch 349.
t lb. 406.
t 3 Cranch 159,
108 Practice of the Court of Admiralty On the Instance side. 109
of bail, &c. and the inhibition is to be certifiell were not released by the sentence of the Judge,
in like manner as an original waTi-ant. • . especially if that sentence was in favour of the
defendant.
TIT~ 59. Of ]Jutting in jidejussory sef:1.Jrity in '" Th~. .nn".tjrn,,~ it hannens that the de-
_. ... ........... .......' " ' - - - - -
...~ -~ .I. .I.
tending that his client was indebted to him in a And he is also, for this contempt, not only con-
certain sum of money, had caused him to be demned to pay the costs of the party grieved,
arrested m a secular Court: and to inform the but also he is mulcted in a pecuniary fine.
Jndge in a summary manner of the truth of this al- But at the time, if it do not appear ii'om the
leg:at!on, he exhibits a copy ofthe complaint, or, declaration that the cause waS instituted upon a
as It IS called, the declaration, filed in the secular maritime contract, which commonly happens,
Court. And he prays the JudO"e to decree that because in order to give jurisdiction to the secn-
the s~d plaintiff be attac~ed, ~ntil he shall ap- lar Court, they are accustomed in these de~la
pear .111 the Court of A dnuralty, to answer arti- rations to allege that the contract ~pon wlll~h
cles In a case of contempt, which it is usual for the action is founded, was executed In a certam
the Judge to grant upon an inspection of the de- parish and ward m the Cit)' of Lond~n, althoug!l
claratiOn. the party who is represented as haVlng madc ~t
never was in that City: or if the party who IS
TIT, 68. The appearance of the person who is attached, expressly deny that the action is
attached In a case of comempt. founded upon any maritime contract, then he
who procured the attachment is obliged to file
IF the p~rson who is -arrested should appear, artIcles or interrogations in a case of contempt,
the .Judge IS accustor.ned ex qfficio, in ordcr to and to speci(y the place where, the time when,
aVOId expense, pubhckly to exhibit to him a and the cause for which the said contract was
copy of the deelarati~n, and to interrogate him formed. If he prove 11is allegations, he is to be
whether the debt, whIch he claims, be founded allowed his costs, and the person who was at-
upon a co~tl:act co~cl.ud~d.in parts beyond the tached is, as before, to be pmlished fOl' his con-
seas, or WIthIn the JUriSdictIOn of the High Court tempt.
of Admiralty of England. But the process or manner of proceeding in
And if he confess the fact; he is to be admo- these cases, is a summary proceeding, as in other
I~ished forthwith to withdraw the aforesaid ac- maritime causes, and as thcy arc accustomed to
tiOn. If he do this without delay, it is usual proceed in the Ecclesiastical Court.* It is to
for ~he Judge .not to cOllsider him in contempt. be noted that if the party proceed to justify the
But I.f he pertmaclOusly adhere to it and refuse contempt ul in § sed Jato non COJl8tare," he is
to WIthdraw the ac.tion, although it is confess- obliged to find fide;jussores to submit to the
edly a cause ?f marItIme juriscliction, he is to be judgment and pay the costs. Note, that the
pron~unced In contempt, and is to be committed • Vide Cler. Pme. per Oughtonum, Tit. 30. 31. 3:1
t«;> prison, and there detained until he withdraw [" I copy these words from the origill:,l, with a con·
the aforesaid action. fession that I am utterly unable to explul!1 them.]
118 Practice of the Coort of Admiralty
ADMIRALTY PROCEEDINGS.
BRIEF DISCOURSE
LIBEL OR DECLARATlON.*
were) or articulate, in which the merits of the Each plaintiff and defeudant's name,
Aud eke the .Judge who tryes the same;
cause are propounded by articles. The thing demanded, and the right wherehy
4. The properties of a libel, or those tlungs You urge to have it granted instantly:
'\2-1hlCh are said to be particularly proper to a, li- He doth a libel right and wen compose,
Who forms the same, omitting none of those.
bel, are these, (scil.) that it be round, (as the
civilians term it) dilucid, concluding, not obscure But the particular form of it libel'" consists in
uncertain, nor general or alterllative.'" the conclusion, which (what it ought to be) Ja-
5. The efficient cause of a libel is the law, son in sect. huic autem n. IS lnstitut. de Action.
which deposeth a libel to be offered: But it copiously disputes; so also If;lyns. in lnst. de
commands principally that it be offered to the Actio-n. At this day, such respect is had to the
Judge (seeing his office is implored upon this conclusion, that it be sufficient to gathcr from
petition) and then also to the adverse party. its form, of what nature the action is, though no
6. As to what respects the matter of a libel : name be expressed: which seems to have been
It is be offered in all causes, about wlnch the otherways formerly, at least by the law of Co-
judgment is stirred up, and a suit is commenced dices, To make this form the more (lilucid and
betwixt two: and that as well in civil as criminal clear, we will dispose it into an argument or a
causes, &c. but not always in sUlmnary causes, syllogism, t in Darii, which shall in short com-
(viz.) in executions: for in these, any manner prehend the whole matter, and all the parts of
of petitIOn is sufficient, though it be without wri- a libel.
ting: like as when it proceeded by way of in-
quisition, or where the office of Judge is implor- Everyone who defames an honest man ought to
ed in an extraordinary manner. be Ecclesiastically punished.
7. The form of a libel, (although it ought es- A. G. hath defamed a certai11 honest man, J. G.
pecialJ,Y to be drawn, according to the style and Therefore the said A, G. ollght!o be Ecclesi-
custom of every court, yet there is no special astically punished.
cust?m extant,) ought to be drawn in writing; 8. Civil actions are either singular, general or
and III such manner, as that it may contain these universal, as was shown in the Practice. Those
five things, comprehended in these following actions which are singular, are also either real
verses. personal, or mixt, as has been shown. Now in
a real action, the next cause, and not the re-
Quis, quid, coram quo, quojure petatur et Ii quo,
Recte compositus quique Libellus habet.t .. Ita formari debet ut ex nar-ratls sufficiat jns agendi
irnplicite resnltare et in postea explicite in probationihns
" Ferr~r. in forma Lib. eontr. opp. lib. &c. uec1araI'i. Wesemb. ubi s. n. 8. Anchor. cosi!. 1'18. n. 6.
t HortJensis de Libell. obla. Alciat. ubi sup. fol. 18. t Lanfr. c. quoniam. de prob. ad verb. petition n. 8
126 Of the Form
Ofa Libel. HIT
mote, ought to be expressed, ,. as for example,
I demand ten pounds of Titius which I lent him, ed thereto: the omission whereof doth vitiate
and I desire he may be condemned.to pay me the proceedings. \Vhence a libel is deservedly
that sum: here now' the contract, or the lending ranked among the substantial proceedings: for
money, is the next cause in a real action, and it no libel existing, the proceedings are rendered
is the remote cause in a personal action; for the null, &c.
obligation or bond arising fi'om the contract, is 10. Agreeable to what has been said, I will
the next or nearest cause in a personal action, here obviate the form of a libel, as it is offered
and the remote cause in a real action: where- before the Judge of the Ecclesiastical Courts.
fore in a real action, if yOIl say in your libel, I And in the first place, it must be drawn in the
ask ten pounds of Titius, which he owes me up- name and style of the Judge, as Alciatu8 has
on bond; here your libel is so general, as it is in also observed in his form, set down in his prac-
danger of being avoided, if the defendant ex- tice, at fol. 18. (viz.)
cepts against it: hut if in this action, you say in
In the name of God amen. Before yOlt th",
this manner, I ask ten pounds of Titius which
'1.vOrshipfulH. W. Doctor ofLaws,principal
I lent him, the libel1s dilucid, by your making
mention of the next cause: and so observe the
tfJieial of the beautiful consistory court of
y ork, ~c. The party of J. G. against A.
quite contrary in a personal action'1: But in a g~'
neral or universal judgment or action, there 1S
G. ~c. allegeth and compillineth, and Pl'O-
no need of mentioning any cause.
poundeth, ~c.
9. The end of the libel is, that it may pro- Imprimis, He doth propound and article, that
pound the plaintiff's desire, and instruct the the said J. G. was and is a man very JlOnest, just
Judge and the adversary, as to the nature of the. and upright, of good fame, life ~nd honest con-
future sute, and to the foundation of judgment: versation, aspersed, defamed, w1th no cr1me (at
for both the articles of the proofs are to be ac- least such as is notorious) except such as is at:
commodated to the form of the libel, and the terwards mentioned, and is commonly reputed,
sentence is to be pronounced according to the had, named and esteemed as such, &e.
same. \Vherefore to the intent that the judg. Item, That notwithstanding the premises, the
ment be begun in due order, and be founded said A. G. out of a malign spirit, in the months
upon a certain thing, it is necessary that a libel of A. lJ'L L ~'c. in this present year, 1630, in
be given by the plaintiff, though not admonish- in one or other of the said months, within tIle
said parish" of D. afllresaid, or some other
* Laufr. ubi s. n. 3. l\lyns. Inst. de Act. in Rub. n.
'15. et Sect. omnium autem. n. 14,15.
t Lanf. ubi supra n. 3, 4, 5, 6. * Ratio hujus apud~Iyns. Inst. rll' \elinn. Spet. :\To-
1f'f. d. Sect. rurarc antcm
128 Of the Form, ~".
PrecedeJjts. 129
place witllin thc said parish, maliciously and out
of an intent of defaming and i~juring the said J. No.1.
G. hath defamed and i~jured him, and hath said,
...... 4-,0 .... .£>£1
Ul·"\.d. '-,\.1-,
..R......... "'",vun:..
'L-........... ......
T r > . . . . . . . . .""' ...... 70 ...... ,...
I up.! VOl
] . . . ; " ..
!.!.! u..I
1 ......... .1 rl""' • ."TrI. .... l-r..,..",.
€HJ\.l l-l......la.I.Ug,1.i•.J'.1 J
Summons of a Jud/{e 01' Justice of the Peace to
the JJIastel', to answer a claim for wages.*
words, of and against the said J. G. and e'pe-
ciaJly these words following, or the like in effect, ~·o A. B. ~IASTER OF THE SHIP F AM.F..
(viz.) the said A. G. said and reported (though
falsely,) diverse and sundry times, or at least Y OIT are hereby required to attend at my of-
once, speaking to the said J. G. thou hast got a fice, N 0 . - - - Street, in the City of Baltimore,
wench with child, &c. The party doth pro- on Monday next, the - - day of - - a t - -
pound and article, as to such a time and manner o'clock in the forenoon, to show cause why pro-
of speaking the words, &c. .. cess of attachment should not issue against the
'Vherefore proof being made upon the pre- said ship Fame, whereof you are .Master, her
mises, the party of the said J. G. dothrequest tackle, apparel and furniture, according to the
or petition, that thc said A. G. for suell.'exces- rules of Admiralty Courts, to answer the claims
sive raslmess in the premises, and concerning the of Thomas Tackle for services as a Mariner on
same, may be corrected and pumshed according board the said ship during her voyage fi'om the
to your pleasure; and also that he may be con- port of - - to the port of - - which voyage
demned in charges, made and to be made in this ended on the - - day of - - .
cause, on the behalf of the said .J. G. ~c. Given under my ha~d, this - - day of--
JJIynsillger in Illst. de injuriis Sect. in summa, in the year aforesaid. T. G.
concludes 'thus. 'Vherefore the plaintiff desires
that (in order to repair his fame and good name) one of the Justices of -the Peace for
the defendant aforenamed, may be compelled by Baltimore Coullty.
you, and your definitive sentence, to disown,
confess and declare publicly, that the said defa-
matory and injurious words, were unadvisedly
-
No.2.
and against the truth, spoke and nttered by him,
&c. or otherways, that right and justice be ad- Certificate of the Magistrate to tlle Clerk of the
ministered, &c. District Court.
obtain relief in the premises, he prayeth process Baltimore, to answer tlle libel of - - , amI how
of attachment against the said ship Henrietta, you shall execute this precept you make known
her tackle, apparel and furniture, according to to us in our District Court for the District afore-
the course of Admiralty Courts, and monition as said, at .the Court-house in the City of Baltimore,
is usu~] in li~c cases generally and in speeial to _ _ , and have you then and there this writ.-
the SaId Damel Jones, that he mayan his corpo- '\Vitness the Honom'able James \Vinehester, Esq.
ral oath, trne and proper answers make to this Judge of our said District Court, this - - day
Libel and to the interrogatories hereunto annex- of~ 180
er~. And .your Libellant prays that the said Clk. Dist. Court Maryland.
shlp Hennetta, her tackle, apparel and furni-
ture may be condemned and sold to pay the wa.
ges due as aforesaid to your Libellant, and that
he may have such further relief in the premises No.5,
as to justice shall ~eem meet.
l§'-'l?le .Proctor will annex such iutelTogatories as
1J!Ionition against the Vessel. '"
may smt hlS case, and a statement upon oath of the Lj.
h e IIant'sJ claim, in the form of an account ~.gainst the THE UNITED STATES OF AMERICA,
'Vessel. .
~IARYLAND DISTRICT SS.
Salvage. bend the fore top-sail; that the said mate on his
return reported that the said ship was old and
To the Honourable Richard PPlers, Esq. Judge rotten, alld in a very bad situation, alld in his
• . ro.. 1 1
?f the ..District Court of the U nitcll States, opmlOn unnt to proceen on ner voyage, where-
m and tor the Penusylvania District: npon the mate by the orders of the said capta'''!
P. returned to the said ship with assmanees that
The libel of.T. lY~ owners of thc ship Amia- he the said captain P. would stay by them until
ble and IF. 1'. Captain of the said ship, for them- the next day, upon which the said captain D.
selves antl all others entitled, humbly showeth : ~ote a note to the said captain P. requesting
That on Satllrrlay the 10th day ~f Nov. inst. h1m to stay by them and endeavour to brinr-
about 7 o'dock in the morning, 'the said W: P. them into some Port, and that he should be aj~
bel1J& on~a vo y~ge in the said ship from Charles- lowed whatever the Law would give, to which
ton, l1J !'lotlth-Caro~lI1a to Philadelphia, he dis- the ~aid captain P. agreed-that the said ships
covcred. a Shl]1 m rhst.J'ess, upon which he short- contmued m company during the rest of the
ened sml, hauled up fOl' her, and found her to be day, and during the rest of the night, continued
a shlp L" Bella GNnUe of Bordeaux, commanded to make signals of distress and so continued
by - Denney, bouud for P. au P. to B. That the during the ensuing day the 12th inst. That the
Captain de?lared that they were in great dis- said eaptain D. on the 12th inst. being hard
tress the shlp bemg sinking under them and en· blowmg weather, threw overboard part of his
treate.d the said IV. P. to stay by them, to which cargo; that on the 13th inst. the weather modera-
!.he sal d 1fT. P. agreed; and the wind then blow- ted in some degree when the said P. run down
mg very fresh, the smd IV. P. made light sail in and on consultation with the smd captain D. sent
order to continue in their company-that the his boat on board to lighten the ship and to take
people on board the said La Belie C;'eolle not un- ]u,r,i.n t~w-t?e boat returned witb a few bags of
derstanding his intentions appeared alarmed and Coftcc, 1Il wInch boat the said captain D. came
re!lewcd their signals of distress, npon which the on board the Amiablp, to propose that the said
saId TV. P. wore ship an d ran tmder their stern, vessel should bc taken in tow when the weather
when they again besought him not to leave them moderated-that it continued to blow fresh that.
as their ship woulrl unlloubtcdly founder' upon night and the 1;j" h. The said captain D. continn-
which thc said TV. P. assurcd them that he'would ed to make SIgnals of distress, but on the 15th
stay by them and relieve tllcm as soon as the the weather moderated, and at half past 3. P. JIll.
,~eather moderat~d-that the next day about 11 the said captain D. hoisted colours half mast
o clock he sent h1s yawl with his mate and four high, upon which the said captain P. bore down
hands on board the said ship La Belle Greolle, to them when they declared their ship was sink-
who aSSlsted to pump out. the said ship, and to
142 Precedents. Precedents. 14'0"
iug and he~gerl to be taken out-that hI' l'Ifrlt>]'cd on, the ship sinking. fast, and there appearing no
them to hoist ont thcir boat and put provlslon chance of preservmg her, at the rcnewed re-
into her and faJl to lewarrl and he would bear 9ues.t of the sair! captain D. and to prevent her
,
•
~ ... ... . -
•
. . . ..
Gown ann LaKe Lnem JIl-L'mt It aaalll !)t>aan to
i""'> ~
l1~l.t!r]ng other vessels, they set . fire to the said
bl~w. li'esh with a heavy sea, and as tht>y \Vere ship and left her, and the sajd captain P. with the
hOlstmg ont their !loat she rlroppt>d in pieces, ~<tir! captain. D. and hIS crew and passengers a-
wherenpon they begged the said P. to send his fOI'esaJd arrJved in the Port of P. the 19th of
boat to their assistance; that the said P. called November inst.
together his officers and crew to enquiI'e which Now inasmuch as the said TV, P. hath with
of them wonld undertake in the hiah ,.. winrl and so much difficulty and daJlO'cr saved from the
heavy sea which then prevailed to go and bring said ship La B,"lle ereolle th~ Articles aforesaid,
away the crew; that his two mates, and two of which would otherwise in all human probability
the seamen agreed to go and got out the boat, have been totally lost; may it please your
~hat with. ?onsi derahle pains and danger bring- honour to or.rler t!le sai~ articles being nm:;' on
mg provlSlons and two men at a time they remov- board the saJd slnp Annable to be attached and
ed the captain and his whole crew consisting of taken by the process of this honourable Court.
twentv threc men and one passenaer' that .previ- and that a MONITION issue to all persons con:
~ b '
ous to leaving the said ship, the crew proposed cerned to show cause, if any they have, why.
to set her on fire, to which however, the said a reasonable Salvllge shoul.] not he dec.reed
captain P. upon being informed of the proposal thereout to the Libellants and all others intitled
objected, and the said captain D. and his crew and that such Ihrther and other steps slmll b~
being on board the Amiable, declared that they taken as the course of this honourable Court
relinquished and abandoned the said ship La shall require. 'V.
_ J.
Belle Creolle and every thing on board her- 'V. 1',
that the next morning being the 10th, the said ,Yo HA \VI,E, Attorney for Libellants,
captain P. hoisted out the yawl and in the
course ~f the day took out of the said ship as
much of the cargo as possible amounting as your
Libellants believe to be about tweuty thousand
wt. of Coffec, fOllr or five barrcls a few kegs of
Sugar, twelve or thIrteen bales of Cotton, and a-
bout .t~venty-three bags of Indigo, &c. &c. &c.
(,"fJec?;fymg the Articl~s ,5rtved;) that night COUlmg'
144 Precedents. Precedents. 145
To the honourable JOHN SLOSS HOBART, esquire, sons to the said LibeHant unknown, sailed some
.Judge of the District Court of the United States time since from Calcutta, an English port in the
-for the New York District. East Indies, bound for some port in Europe-
,)
That upon hersaid voyage she \vas met "'-'1th and
The libel of Silas Talbot esquire command- captured as a prize by a French national cor-
er of the United States ship of war the Consti-, vette called La Diligente, commanded by L. T.
tution on behalf as' weH of the United States as Dubois, who took out ofher the captain and crew
of himself and the officers and crew of the said of the said ship Amelia,with aH the papers re-
ship; against the ship Amelia, her tackle, apparel, lating to her and her cargo, and placed the said
furniture and cargo: 'Ettienne Prevost and the said French mariners
The said Libellant for and on behalf as afore· on board of her and ordered her to St. Domingo
said, doth hereby propound, allege and de~lare . for ac\judication, as agood and lawful prize-And
to this honourable court, as foHoweth (to WIt) that she remained in the full and peaceable pos-
First, That pursuant to instructions for that session of the French from tJ:!e time of the cap-
purposefi'om ~,he Presi.dent of t~e Un~ted States ture thereof by them for the space of ten days,
this Libellant m and WIth the salCI Umted States whereby this Libellant is advised that as well by
ship of war the Constitution and her officers ~nd the laws of nations as by the particular law of
crew did subdue, seize and take upon the hIgh France, the said ship became and was to be con-
seas,' the said ship or vessel caHec! the Amelia. sidered as a French ship.
of the burthen of about 370 tons, WIth her appa- Lastly, this Proponent doth allege, propound
rel, guns, and appurtenances, an~ ~ valuable ear- and declare, that all and singular the premises
go on board of the s~me, conslstmg of mUon, are and were true, publick and notorious, of
sugar, and dry goods m bales, and hath !Jrought which due proof being made, ]le humbly prays
the salfl ship or vessel and her cargo mto the the usual process and monition of this court in
port of New York, where they now are. this behalf to be made, and that the said Etien-
Secondly, That the said ship or vessel eaned ne Prevost, and all other persons having or claim-
the Amelia at the time of the said eapture there- ing any interest in the said ship Amelia, her ap-
at: was armed with eight carriage guns, and was parel, guns, appurtenances and cargo, or any
under the command of Citoyen Etienne Prevost, part thereot: may be cited in general and speci-
a French ollicer of .Marine, and had on board al, to answer the premises, lllld that right and
besides the said commander thereot: eleven justice may be duly administered in this behalf,
FrpnclI mariners-that as this LibeHant hath been and all due proceedings being had, that the same
inf;lI'lned, the said ship or vessal with her said ship or vessel, her apparel, guns, appurtenances
cargo being the property of some person or per· and cargo, for the caus~s afores,aid and others
u
Precedent.>, Precedents. Hi
appearing, may, by the definitive sentence amI ii' burgh on a voyagc to the East Indies, where s11c
decree of this honourable Court be condemned J, arrived safe.
as forfeited, to be distributed as by law is provi.,\ That shc left Calcutta commanded by the
rl.corl .... .<0>""... ' 0 ..... ,.;n ....
t-'''l.1''''''''''''lug
....11..,\.1 J.
,.h.,.
Ll.l'V
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vnt· +n.... •.-"",, ,.....", 10. h""
l.IH n .... "",.7
tl-.o. ..... n l~li ... lz. .;::;" :' ..... ;.1 l .. ,( h _"-T<\"P£lp
"''-'"v J-" u .... uvn ...:{* ;. ""H'-J ... ..., '
1'1 £' t~ F TIfl"plln·pl'l.t
~ "''''''- ' ... v~ ... 5 ...... ~ ... ,-,v',,,,
.0<-....... .. n •• c~
"'''n
~
t', ~ ~ ~~
",.U:t.:.: 11
arlTIed vessels of the United States; or if it shall ?; the month of April last past, bound to thc Port
appear that the same OJ' any part or parcel tJH~re.% ' of Hamburgh aforesaid. That at the timc of
of ought to be restored to any person or per",· the said ship Amelia leaving Hamburgh amI Cal-
sons as the former owner or owners thereof, ;' . . cutta as aforcsai(l, and at the time ofher capture
then that the same may be so restored upon the by the :Freneh hereinafter mentioned, she be-
payment of such salvage as by law ought to be['I,;nged with her cargo, consisting of the Articles
paid for the same. in the said Libel mentioned, unto IVlcssieurs Cha-
RICHARD HARRISON, peau Rouge and Company, Burghers OJ' Citizens
Advocatefor Libellant. of Hamburgh, and that the same if restored, win
br the sole property of the said Chapeau Rouge
and Company and of no other person. That the
said ship Amelia was eaptnred on or abont the
Answcr to the fOTegoing Libel. sixth day of September last, on the high seas as
she was proseenting her last mentioned voyage
THE Claim and Answer of Hans Frederick,
to Hmllflllrgh aJoresaid, by a French armcd Yes-
Seaman to the Libel of Silas Talbot, Esquire, sel whose name as this Claimant has nnderstood
Commander of the United States ship of war', was la IIenl'ietia 'd Bocl~r()J,t, eomlllamlctJ as he
the Constitution, on behalf as wen of the United: nnderstoOlI by CitizcnDllbois--thatthe said cap-
States as of himself and the officers and crew of tain Dubois, or whoever the saill eaptain of the
said ship, against the ship Amelia, her taekle ap' said armed vessel might he, look i'l'Om the saiil
parel, furniture and cargo, in behalf of Messrs. ship A melia the masi~r thereof, the said Jacob
Chapeau Rouge and Company of Hamburg, Fredrrick Engelbrecht, and thirteen oCher crew,
merchants, owners of the said ship Amelia amI with all her papers, leming on board this Claim-
her cargo. ant who was mate of the said ship Amelia, thc
THE said Hans Frederick Seaman, saving and doctor and five other men; thal the French cap-
reserving to himself all benefit ofexception to the tain ,5enton boan] of tlw said ship Amelirr twelve
said Libel, answereth and saith, that the said ship hand~, andn!'r!cred her to proc('('{! to St. 130Jllin-
Amelia, commanded by one Jacob Frederick <Yo aIHl !J:lI·tc,l com]lallY "ith hCT the i:l't]] day
Engelbrecht, as master; sailed on or about the baftcrher ' "
e:lptlll'C as aforesai,]-that on or abont
•
twentieth day of February one thousand seven the fifteenth day of September last past, the s;,id
hundred and ninety eight ii'om the Port of Ham·
148 P~cedenis, Precdents. 149
ship Amelia while in possession of tIle French, Libel for the restitution of a ship captured with-
was captured without any resist~nce ?n ~er part out authority.
by the said ship of wa: :~e ~O!!S~ltut~n, and
brought into the port 01 .N ew : or~-J hat the
Amelia had eight carriage guns, It bcmg usual !or The libel of Ro.bert Findley, ~c.
all vessels engaged in the trade she was carrymg
11mt your Libellants are the true owners of
ou to be armed even in times of a general peace,
the SHIP '\VILLIAM, .la~es Leg~at mast~r,. now
and this Claimant further sayeth, that there being
lying in the port of Pluladclplua and wIthm the
peace between France and Hamburg at the
jurisdiction of this Honourable Court. .
of the capture first above mentioned, and also . That on the third day of May last, the saId
betweenthe United States and Hamburg, and the
ship being'on ~er voyage from Bremen to Po-
United States and France, the possession of the
towmac river, ]]1 the state of JVlaryland, .and
Amelia by the French in the manner and for the
within nine miles of the sea coast of tIle Umted
time stated in the said Libel could neither by the
States received an American pilot on board for
laws of nations nor by the laws of France nor by
those of tIle United States change the property
the p~rpose of conducting her safely .op
.the
of the said ship the Amelia and her cargo, or Chesapeake bay to ~he place ?f h~r destmation.
That after receivmg the sald pl,ot ?n board,
make the same liable to condemnation in aFrench
she continued on the same course untIl she had
court of Admiralty; that the same could not
an-ived witllin about two miles of Cape Henry,
be considered as French property, therefore
the southern promontory of Chesapeake bay,
the said Hans Frederick Seaman, as mate, and in five fathom water, and as near the shore as
the only officer of the said ship Amelia now in
the pilot thought it proper ~o go;_ whefol she was
this port, hereby humbly claims the said ship A-
forcibly seized and taken mto possession by a,
melia and her cargo, and prays that the same may
number of armed men under the command 01
be delivered up and restored to him in the like.
plight and condition as at the timeof the capture Peter .loanene, captain of an armed schnonerth~foI
coming out of Chesapeake bay, called the C!tz-
by the said ship the Constitution, for the benefit
zen Genet, and bearing the natio?aI colours ?f
lJ f th e owners thereof, and that he may be hence
the republick of France, as a PflZC to the smd
dismissed with his costs and clmrges in this be.
half sustained. schooner, and hath since been ~letained amI now
is in the possession of the Sald ~etel' .loanene,
HANS FREDERICK SEAJlIAN.
who also then and there made pflsoners of the
3d November, 1799. captain, officers and. crew of the s~id ship'Vfl-
linm, and them as prIsoner doth detam,
Precedents. 151
150 Precedents,
damages, charges and expenses incurred there~
Your Libf'llants not admitting that the said
schooner the Citizen Gend, was duly commissi- by,
• For which end your Libe]]auts lnl!~l.)ly pray
oned and all~horized to make prizes of ves,e1s 1 -•....-.1'>-.... ,. ...........n.of ~...-,~1 ,..............".1." .......... • ~ ... "'j
1 1 • .. 1:> 1
'L' _L" ---1--~'~'1"
L- fl)p.p pr"y l)rocesso.l• al.l.ac.lu.l,"-,u,-"
i+
UI.ll.-." .... HIlU 111UIl.lLJVU (:('i:' 11
I)CH11liTiOa LOuI=lLlsn SU1JieC.L~. WIlj, ....._
y u-
n .
~
ing against the property of the eitiz~ns of t~e of the said ship and cargo were sa:ed to t~e
United States, commanded by captam RoU]lIS. mvners and all others concerned, haVlng receIV-
That the commander Df the aforesaid privateer ed nevertheless considerable damage in her rig-
and his officers, after looking over the papers of ll'lllO' and sails &c. while in possession of the
the Fair American declared said ship and cargo ;-, ~, 'd
~'l'ench prize master and crew aforesaJ . .
good prize, and took from tf1e ship Fair Ameri· Your petitioners furt.her show, that the smd
can, salling as aforesaid, her officers and seamen, ~hip Fair Anierican. f1!1d c~r~o were vaJ~led an.d
aU excep{ your Petitioners and Anthony Facht- estimated in the pohcles of msurance efle~tedm
man the cook who were suffered to remain on Philade1plJia at the time the said sh~p set, Sall from
board the said ship, and put on hoard from the the port aforesaid, at the sum of thIrty eIgl1tthou-
~i,l schooner, n prize master with six white sand dollars or thereabouts, and that after the:
said shin J.
arrived at the port of Charleston nfol'f'
156 Precedent·s. Precedents. ]57
said, she was valued and estimated with her car- THE ANSWER OF STEPHEN DUTILH.
THE responr1ent,Stephen Dutilh, ol~jects to the 1'0 the Honourable RICHARD PETERS, Esq. ere.
commission i~snerl (lilt of this I-IOIlOurahle Court
directed to TVm . .ll lJ. ~c. amI t1lC depositions The Replication of John Brevoor, master, and
of F. C. .ilL taken bv the said Commissioners and John Schier, seaman, Libellants, against the ship
retnrned to this CO~lrt, being read in cvidence so ~Fair American, to the separate answer of Ste-
far 3S affects tbe right and interest 01' the said phen H. Dlltilh and John Gourjon, Respon-
Stephen Dutilh, and issue joined behveen the dents, humbly showeth :
said J. B. and J. S. ancI the said S. D. and doth THAT your Libellants,. saving and reserving to
protest against the same being read in evidence t11emselves all and all manner of advant3ge ~)d
so far as it may in any way afiect him in the de- exceptions, to the manifest impt:'rfections and
fence he hath made. and t]1C right and interest he insu.fficiencies in the said Rt:'spolHlents' separate
'hath in the matter in controversy. answers contained, for answer t]ler'cto, or so
M. RAWLE, much thereof as it is material and necessary for
fa)' s. DU']'lLH, Re<"]Jondent. them 10 make answer, they answer aTI(( say:
That inasmuch as your Libellants are calJed up-
The above o~jection having been offered to on to certl(v, that the ship Foil' American was
the Comt, and a motJon having been made for captured and taken by a French Privateer, and
leave to en ter the same on the minutes of the re-captured by the LIbellants with tbe assistance
Court, and his Honour the Judge having refused of Anthony Fachtman, the cook, and in manner
permission to enter the· same, the 3tlvocat.es for and form, and it is more hilly sct fort.h, and made
the said Stephen Dutilh, Respondent, do protest· known in the IJbc] of your said LbeJJants ; they
against the conduct of the said Judge in this par- aver that theproof':\ on whicb they rely to con-
ticular. fIrm and veri fy the said capture and re-captUJ'C
LEWl s 1 ArhJOcates for are hCI'e in Court rt:'ady to be pl'Oduced. And
RA WLE J S. DUTILIl Respondent 1
you LibcUants furthpI' answering, say, that wen
29th July, 1800. amI true it is, as set forth in the separate answer
of the Hesponrlent} Stephen DutJlh, that the
said Respondent did dcs,re 1lis correspondt"'nts,
:Messrs. R. Hazlehurst & Co. of Charleston to
pay, &c. which said sum Jour LiheUa.nts acknow~
ledge to have received, &c. but your LlbeJJants
affirm that the said sum was not paid them, un-
166 Preceden.ts,
jJrecedents. 167
til the mOJ1lf':nt when they were about enterincr on
a voyage, whIch preventeJ them from taking
. . " salvage and i~ldem?it~ the:reln sought-humbly
any legal stcps at that time, to testi~y their dis- p~a'y that theIr claIm III thIS respect may be sus-
......... .,.;nr.-.x-.t-; ..... ..."
O~l·Ll'-:tIU\... LIVJI
nf-
-to,,\.'
1-1... ..0.
l·U\...t
....... ~..,,1111... £'lII. ... "'"
LHlJUJ~IIL·~~ a.fl',l
.rIo ..... - ) ~-n.L.. .,'1I{h.n~.o.."r-......
.,[..{J.-:'!'Lu1n....-.l'....I.I'--'J
r
o~
tamed_ and that thev
"7 J may
'J hI" !"l]ln.wp..l
_ .•
~~ "'''-J''" TT ~ ..... '-
"',,£01, ~~~~~~
J'L·a·:tUll ....
~.:n.I.~_..o:l....l
the compensation made; am] fUl'ther your Li- able salvage as to yom' Honour may seem just.
bellant.'3 allirm, that they have always been dis- and proper. . .
satisfied. with the aforesaid sum, considered as a INGERSOLL,} Proctors for
reward for their labour, risk and trouble, 'in re- ADAt'r!S, Lzoetlants.
taking the ship Fair American ii-om the hands of 22d July., 1800.
the enemy and ~estoring ller ,,-ithher cat'go to
the concerncrl.
. And yonr Libellants further answering (reply-
-
mg) say~ that wen and true it is, aR set forth, &c. BO'rTO~JRY.
that the underwriters, &c. did direct a sum of
five per-cen t, &c. b I1t which t.hey refused and still To THE HONOURABLE, &c.
do refuse to accept; deeming the same a com·
pcnsatioll altogether inadequate and insufficient T~e Libel of George ,Barela)", of tIle city of
to indel1lni(y yonI' Libellants for their labour, risk London, merchant, John Drury of the same
and trouble as aforesaid. place, Banker, a~rl John lVIang]e,s of 'Vappin()' in
And Jour Libellants fllrthcr answering (reply- the count.:"- of l'llddlcsex, and Kingdom of G?eat
ing) say, that well and true it is, that no proceed- B~tain, merchant; against the ship Lavinia, her
ings, &c. but yonI' Libellants deny that they have freight, tackle and apparel, against \YiIJiam Vi-
ever renounced or abandoned their just title to ~a:y, now or !at? master of the said ship, and a.
salvage, by reason of any such delay, and this gamst Peter Bl1g11t no,v or late owner tJJcreof
they arc prepared to veri~y. am.] .Geo;gc BlifFht, ThOl.nas ]\~llI'~atroyd . and
. And your Libellants further answering (rcJ)ly- \VI11iam Cole, aSSIgnees 01 the Sald I'eter Bhght,
mgJ say, that for as much as in the separate an- respectfully sJ]oweth:
THA'f your Libellants (1jd on the 21§t day of
swer of the Respondents, John Gouzjon, they
are chargcd with having embezzled, &c. your May A, D. 1800, lend on .Bottomry on the sllip
Libellants deny that they have, &c. L:lvinia" ~ler fr~ightJ tackle and apparel to the
,V H EREFORE your Libellants, assertinO" arid smd 'VI1ham VJcary the snm of one thousand
mamtaining that the several facts and thi:gs al- four ~undred ~mr1 ~wel1ty POllllds two shillings
leged and set forth in their aforesaid Libel are and SlX pence stcrhng money of Grcat Britain.
tnJe amI sufficient to ground their title to the the said ship Lavinia whereof the said \Villia~
Vicar)" \vas then master, then ]yil1g and being
_Precedents,
············.···········
..
·······'·1"·····'····'··.··..
. uloresaul.
ncar tbe said port, the said captain bemg other- \v. n "n~'
J--;
wi~. tlI\ab1C to pl'ocure the necesssary monies to ~-\' Proctor. for t!l·e~-L~v~b·L~,.:
1 e tanis,
l'eflt and victual hjs ~<L1.d ship; and compleat his
.
frfight, tue.kle, ~l.l1d appal'e1 to your Libellants for salCIPeter I31lghtP ·1' 0 e assJgnees of the
the - payment of the sum of one thousand seven B 1 lespom ents totl1C L'b J fG .
arc ay of the city of' Lom}. ... leo 'reo.
. hlmdred and sixteen pounds and five shillings Drury of the same' .1 . on] l\Terchant, John
sterling money, being the same sum witll interest, gles of \Vapping i~ ~~~c~ B)f1llkcl', and John1'v'Ian-
w1thin seventeen days after the arrival of the 1 IT: , - ' e C ounty of 1\1' I'll
am filngdom of Great B ·t·' ~T . H l lese::,
same ship at the port of ·Philadelphia-And lants. 31'1 nm,l\~crclJant, Libel
. yonrLibellants do aver that the said sbip the LG-
'Vinin did arrive at the said port of Philadelphia, aftThe said; re~p om1ents .~OW, and at an
times h .
tlle 18th day of July last past~ where she still er, saving and resel'Vmn·to the . cn
lies, and the sa1rl term of seventeen days hath
all manner of benefit and hI
t th . £'
msc1ves,
<:u vantao'c of e .
an
<HIi!
'
o e mam101d incertainti ,xeeptlOti
the said Libel of the 1~1 j~S and lmp~rf('ctions iii
.t'J
fully expired, yet the sald sum of one thousand
s:ver thereunto or unto :: ~~~ c~ntmned, for ,HI
sevenhundred and sixteen pounds five shillings
remains wholly unpaid. l"lally concerns them , t 0 rnakIt ereof ast matt;
'Vhcrefol'e yourLibellants pray the process of e an~wer
this 11onourable Court, to attach the said ship s~er and say-that the said shi > • U?~, a! I
saul Libel mentioned . . p Luvlnw, In tllt'
the Lavi]1ia, her freight, tackle and apparel and ,i
red by the said Pete~ ~;s ~:S]~;;d and transfer
to cite and admonish, the said \Villiam Vicary,
peter Bllght, George Blight, Thomas Murrta- n~me
whose --< she js duly r:g~stc~ed)'
' . ' on R·thRe;od, (ill. .
e ~ tlUJt
noyd and ·William Cole, and aU ollters eonce:;'
ed to sbow cause, if allY they have, why the said
Precedents. Precedents.. 171.
Dece1llhcr 1'799, and freight and allowances ~ pe~un:iary meam in consequence, of the violatio.n
fOl'csaid, when received from the Lihellants, and.· .as aforesaid. on the part ofthe LlbelJants of thelf
not with a vicw to pledge or Hypothecate the · said agreements was compelled to accept the said
~ajd ship [Dr the payment thereof, the Libellan:s
· offer, but previollsly to the acceptance thereof
wel1 knowing the premises, but ~egardless 6fth?lr {to wlt, on the-17th of Ma~' 1800,) he ma~e and
(]llTCement made and entered mto as aforesad) entered his Protest in due form, before a Notary
r~fuged to pay to the said \Vil]jam Vicary the Public, a copy whereof is hereunto annexed mar~
amount of the said freight and allowances, or any ked C, and to which the smd Respondents crave
part thereof, byreason of which refusal, the ~aid leave to refer as a part of tIus thelr answer~And
"rilliam Vicary became unable to payor sattsfy fhe said Respondents further answering say, that
the sevcral persons from_ whom he h~d o~tained · true it is, that the said William Vjcary did, un-
credit as aforesaid, for the use of saul ShIp, a:lcl der the circumstances before stated, receive
was apprehensive that sud] creditors would insti- from the LibcHmlts t]le sum of onc thousand four
tute suits [lO"aimt him pcrsoD<llIy, as weIl as at- hundred pounds, thirteen shillings and two pence
tachments a~ainst the srud ship Lavinia, in order sterling money, equal in ~mollnt to .the debts and
to recover tile sums respectively due tIlcm. And disbursements specified 1n the coples of ~he ac-
the said Respondents further answering, say, tlmt counts D and E hereunto anne:xed, to WhlC]l the
the said Libella'lts taking advantage of the em~ said Respondents crave leave to refer as a part of
baITassment, which the said 'Villiam Vicary was this theinmswer; andalsotllcrcnpon executed tllc
thus involved, in consequence of their refusal to said Instrument of Bottomry 'and Hypothecati-
to perform the agreement by them entered in!o on, bearing date the 21.51 of Ma~ 1800~ for one
ail aforesaid, and designing to compel the SaId thousand seven hundred and SIxteen pOlmds
Peter BI]O"ht
b
or bis assiCTnecs
b
toprnl to the said Li- .
L
five shillings sterling, \vhereofa copy is amlexecl
bdlants It further sum 0 vcr and above the pro,- to the said Libel of the LilwBants. But these
cecds of the said cargo, under colom' of an Hypo- Respondents avCI', that th~ said Instrl1ment {If
thecation of the said ship Lavinia, ofTered to sup- Bottomry and HypothecatIOn '1'313 executed af-
ply the said \Villiam Vicary with a sum of mo- ter the LibeIJants had refused to perform the
ney equal in amount to the d~bts cont~acted.as said agreement, and mere~y on. ~ceouDt of tIle
aforesaid for the expenses, repmrs and 'Vlctuullmg embarrassment and necCsslty aTlsmg fi'nm such
of the said ship Lavinia, provided he would ex- reiilsaL amI under the apprehension which the
ecute tIle Instruments ofBottomry and Hypothe- ,said WiUiam Vic~ll'Y felt of being arrested unless
cation, beariner1:1
date the 21st ':May
•
1800, in {be he complied ,"vith tile requisi60D or the said Li-
said Libel of the Libellants mentioned. That bellants.-And the said Respomlents further an-
the said 'ViHiam Vicary being destitute of all swering, say, that beside protesting as aforesai(
172 Precedents. P~'ecedenJs, 173
on the saic117th lVIay 1800, again'!t the J1ecessity but that the same was part of the proceeds of
for granting such Bottomry and Hypothecation~. the said cargo of the said ship Lavinia~ which
which necessit)' was produced as aforesaid by came to the said Libellants, as assignees of tbe
the refusal of the s:'ljd Lihellants to Derform said H. H. Fcntham after the delivery of the said
their said agreement, the said "Villiam 'Vicary, carrro to them by the said \Villiam Vica1Jr~ upon
caused it expressly to be recited in the said In. the~greernentand condition aforesaid, and which
strument of Bottomry and Hypothecation as an money the said Libellants were bound to pay to
inducement to the granting thereof, that he had" the said \Villiam Vicary out of the proceeds of
delivered an the said cargo of the Lavinia, to the said cargo for the uses .ofthe said ship Lavinia
the Libellants, as assignees of the said Henry, as aforesaid without any Bottom:ry,Hypothecation
H. Fentham, without being able to recover any or securIty whatsoever. And the said Respon-
part of the proceeds of the said cargo, or any dents further aver, that the said Libellants did
freight for the same; and further obtained from not, with the proceeds, or any part of the pro-
S \V, 'Varlerson, the agent and Attorney of the ceeds of the said cargo, pay to the owner of the
said Libellants, 011 their behalf, a declaration· said ship Lavinia~ or to the said \Villiam Vicary}
and agreement in 'writing, that in case the sum of or to any other person for the said owner~ the
sixteen pOlmds, ten shilhngs sterling, be paid to , freight, commission, expenees, offiaking and
the said Libellants in London, at any time·with· keeping possession and delivery of the said car-
in the space of six months, from the'date of such go] duties and aU other charges and expenses re-
last mentioned declaration and agreement, they lating to the said cargo, otherwise than is above
win accept the same in lieu and full satisfaction, set fo,rth before they applied SUell proceeds in or
of the whole of the said supposed Bottomry debt towards satisfaction of bills or other debts and
as will fully appe.ar by the said last mentioned engagements accepted, contracted or macIc by
declaration and agreement, bearmg date the 21.d the said H. H, Fentham; on account-of the said
of May 1800-a copy whereof marked Fis l~ctcr Blight, if ever they ]luve so applied tbe
hereunto annexed and to which the said Respon- said proceeds,. whleb the said Respondents do
dents crave leave to refer as a partof this their an- not omit-And the said Respondents further alJ-
swer. And the Respondents further answering. swering say, that true it IS, that the said ship Lo.-
say and aver, that the money so paid by the Li. ·•.:inia urrived at the port of Philadelphia, on the
benants to the said 'Villiam Vicary, and on the 18th of July, last past, and st.ill lies in the said
receipt whereof, under the.necessity and appre- port, but they deny' that the said ship and the
hension aforesaid, the said instrument of Bottom- freight thereof are liable for the 'payment of the
ry and Hypothecation was executed as aforesaid, said sum of one 'thousand seven hundred and six-
was not the proper money of the said Libellants) . teen pounds, five shmings, in the said Libel men-
174 Precedents. Precedents. 175
tioned or any part thereof; and they insist that Philadelphia aforesaid, was the property Df the
even if the said ship and freight were so liable, suid Peter Blight, and that the assignment of the
that the same is not due and payable until the ex- said ship, by the said Peter Blight to Z. R. Read
. 1 '.1 - " 'ro ,
rnj·r·!ltl..n
o '_~"J"
r.f
~.
C'~'F
,,.,, ..... ~~+l-.~
IU,-HlLUl-
.r__ ~
Il-UIH
..LL -
l,llC ~l$l"
Y
]\'1"'
en " 0 I" .u.1 ]TI tJIC SaIu answer wenwOlleo, II any sucn was
1800. being the date of the said declaration and made, which the Repliants uo not admit, was not
agrcf'ment, signed as aforesaid by the said'S. W. bona fide, but in trust for the said Peter Blight,
\Vadeson on behalf of the said Libellants.--' to secul'C the same from legal process, and faudu·,
And the said Respondents pray that the said lent and void as against the creditors of dIe said
LIbel may be dismissed with costs, &c. Peter Blight, and that.the register of the said
A. J. DALLAS, ship in the name of the said Z. R. Read, if the
Proctor for Respondents. name was so registered, which these Repliants.
do nDt admit, was done in collusion with tlJC said
Peter Blight for similar fraudulellt })urposes, and
the as;lIignmcnt of the residue of the said Peter
R.EPLICATION. Blight'sintcrcst in the said ship, to 1he said G. B.
T. ill. and TV. C. if any such there were, wJlieh
To the I-IoJlourable, ~'c. these Repliants do not admit, was not bona fide,
but fraudulent, collusive amI void, against the
THE replication of George Barclay, John Drti creditors of tJlC said Peter 11Jight, rmd all which
1'y and John lVlangles, to the joint and several an- these Repliant:; are ready to prove, without that..
swers of 'Villiam Vicary, Peter Blight, George that the said Slllp Lavinia, at anytime was or
Blight, Thomas lVlurf1'atroyd
'='
and 'ViHiam
.
Cole, now is die just and lawful property of the said
or to so much thereof as it is material or neces- Z. R: Read in the Repliant's said answer menti-
sary for them to reply unto the said Replicants oned.
saving and reserving all benefit and advantage And these Respondents further say, tllat true
of exception to the uncertainties and insuffici;n- it is, the said ship belonging as these Repliants
cies in the said answer contained~ and aU bene- contend, to the said Peter ]31ight, sailed from the
fit of the matters of facts therein stated, acknow- Port of Philadelphia, in the District of Penn-
ledged and confessed for Replication to so much sylvania bound t() thc ~ort of London, am] con-
of the said answer as these Repliants deny to be signed to Henry Hale Fent1mm~ witb a cargo on
true, propound and say, that the said ship La'Vi~ board belonging also to the said Peter Blight,
nia, at the time of the said Bottomry and Hyp()- . and tJmt the said ship pnt into the-Port of Ply-
thecation in their Libel set forth and at the time mouth, and the said 'VilIiam Vical'y went by
of the arrival of the said ship at the Port .()f land to London) and that before the arrlya] of
176 Precedents; Precedents. 177
the said \Villiam Vicaryat London, th~ said said cargo in or towards satisfaction of bills, or
I-Ienrv H. Fentham was declared a Bankrupt, other engagements accepted, contracted. or
and the said George Barclay', John Dmry, and made by the said Henry H. Fentham, on ac-
1"1. ~ : "_~. __ ~_ _~....l
discharge the expenees repairs and victualling WHEREFORE tnese Repliants pray as in their
of the said ship, other than that what respected Libel they before have prayed, that by the sen-
the said Olltward cargo and that without such re- tence and decree of this Honourable Court the
pairs and other e~pences as aforesaid last men- said Brlgantine, her tackle;. furniture and ap-
tioned, the ship could not have performed, and parel may be c~ndemned and s(lld to satisfy the
compleated her voyage from London to Phila- Libellants' demand, with the costs, and charges
delphia, nor had the said William Vicary, either and so forth.
money or goods belonging to the owner of the
said ship by which he eould have paid the said
necessary expenees, nor was he able to raise the
same by bills or otherwise on the credit of the <; REJOINDER.
owner; and that these Repliants by their advan.
ces enabled the said ship to complete herretUrll The Rejoinder of 'Villiam VicarJ, Peter
voyage, and that such advances were made by Blight, George Blight, Thomas l"Iurgatroyd, and
. them for their purpose. upon the express stip~-. William Cole, tbe Respondents to the Replica-
lation of the said 'Villiam Vicary, the master of tion of George Barclay, John Drury, and Jo1m
the said ShIp, that he would pledge and Hypo- :Mangle, the Libellants in his cause.
thecate the said ship for the security and reim- The said Rfjoinants saving and reserving all
bursement thereof in case of safe arrival, and b~nefit and advantage of exception to the un-
that the money in the said Bottomry and Hypo- certainties and jnsu!'ficencies in the said Repli-
thecation mentioned, was the proper money of cation containerl,.and all benefit of the matters of
these Repliantsand not the proceeds of the fact th~rein acknowledged and confessed. for re-
said cargo, the same having been applied agree- joinder to so much of the replication, as these re-
able to the contract that was entered into as joinants deny to be true, they propound, and say.
aforesaid, between these RepJiants and the said That the ship Lavinia in the said Replication amI
\Villiam Vicary as aforesaid. proceedings rnentioned was not at the time of
j
And these Repliants confessing the said a- the Bottomry in the said Libel mentioned nor at
greement in the Respondents said answer men. the time of her arrival at Philadelphia aforesaid,
t.ioned and referred to, dated 20th ~1ay 1800, the property of the said Peter Blight, but that the
deny that it does in any way or manner affect same was at that time the property of the said Z.
their right to sue and prosecute for the recove- R. 'Read, and had been previously assigned and
ryof the amount due upon and contained in the transferred to, and registered in the name of the
sai~l Bottomr.y and Hypothecation. . said Z. R. Read, to wit) on the 22d day Decem-
ber 1799, bon(/idc for a valuable considerati-
ll}TI and not fraudulently with a view to secure
180 Precedent:.. -Precedents. 181
the same from legal procesg, nor'in collusion ther propound and say, that the said Libellants
between the said Peter Blight, and Z. R. Read were by the said agreement of the 10th Febru-
as a.ppears by the assignment and registry, e.o- ary 1800, obliged to pay the freight, commissi-
"1.... 1... " ~vhpT'P,...f <>1"1" 'h"' nnt...... nnpvA.l 11 TO.-J -1-1.....".. 1 ........... _.,.....r1 .>CI."'U"""'-L"IIr.:r"II..n£u:, ,h.£l,DiD';...." ~ __ ...,,4-.; .... .o...1 _ .. ",..j.. _~ l.._
..
1.,7~--1J' TT ~~'--".&
...... -..", L ~ _ ,J,. "-.: .. JllIoI"'-.I' ~"I~"'.A.'"-".l1'-'1,.ol.-.:L."1~~~. lJ'~.ilU'JV UlJ gl".H..J. ""''''''''pvUVLo,;,o Jon'-'I '-"~J.l ..U.l't.:.-~.1L.1.Vll'-''l.I, ULJ\; U..L IoIJ{J
Rejoinants further propound I and say, that all the proceeds of the $aJd cargo, and before the same
prop~rty, interest, claim and demand of the s~id could he applied towards satisfaction of the
Peter Blight, (if any he haa) of, in and tn, the bilh or other debts and engagements accept--
said ship Lavinia, were further tl';ms!ened and cd and contracted, or made by the said Hen~
vested in the said George Blight, Thomas lVlur- ry H. Fentham, on account of the said Pe-
gatroyd and 'Villiam Cole, or some or Olle of ter Hlight; and that the said ship Lavinia,
them by the Deeds of Assignment in the answer and her cargo would not have been delivered
of these R~joinants mentioned, some or ODe of to the said Libellants, but in consideration 0 f
them, for the uscs and on the condition in the their promise, and agreement to pay the said
said deeds of agreement, some or one of them freight, commission and expenees as aforesaid,
specified, before the Bottomry in the said Libel and with a view to apply the monies received
mentioned, and the arrival of the sruel shlp Lavi- on such payment to the equipment and expen-
nia at the port of Philadelphia, as aforf'said- ces of the said sllip LfJ'Vinia, for her return voy~
AmI the said deeds of agreement were made bo- age to Philadelphia aforesaid. And these Re-
nd fide without fraud or collusion for the be-qe- joinants further propound and say, that the
fIt of the creditors of the said Peter Blight there- freight for the said cargo, was due and payable
in specified. And tbese Rejoinants furtller pro- unto the said Z. R. Read, George Blight, Thomas
pound and say, that before the date of the said Murgatroyd and William Cole, or some or one
Bottomry and they believe at the time of enter- of them as owners, or owner of the said ship
ing into the said agreement on the tenth day of La'Vinia~ by virtue of the transfu and assign-
February 1800, the said Libellants were funy ment afore~aid, amI the Rejoinants further pro-
acquainted with the-ownership of the said Lavi· pound/and say, that the Libellants, did refuse to
nia, and that they have not fulfilled the said a- pay the freight due for the said olltward cargo,
greements according to the true intent and of the said ship Lavinia, and that the said Willi-
meaning thereof, wherein it' ought and could be am Vicary, was compelled in the manner and
performed in as much as they did not, and have for the reasons set forth in the answer, of these
not paid the freight, commissions and expenees Respondents to accept the money, in the said
in the said agreement mentioned, although such pretended Bottomry, or Hypothecation mention-
payment ought to have been, made, and the said ed, and to execute the said Instrument as afore.
agreement could in that respect have been per- said. But these Rejoinants say, that before and
formed and fulfilled. And thes~ R~joinants.fur- at the time and subsequent to the execution of
182 Precedents. Preee·denis. 183
the said Instl'ument, the Libe1lant3 were flossess- Vicary was payable, and ought to have been
ed of goods, wares, merchandise and money~ paid out of the proceeds of the outward cargo
belonging to the said Peter Blight, o\vner of the before any other application thereof; and that
said outward cargo, whereby and wherewilh all the sale! Libella,nts, haying the said cargo or the
J
the expences for the return voyage for the proceeds thereof in their hands, were bound by
said ship, might and ought to have been defray- the: said contract of the 10th of February 1800.
ed and paid, if as the said Libellants pretend to make up such prior payment, without ~ny Bot~
(but which tbese Rt:ioinants do not admit) the • tomry or Hypothecation to secure a r'eimburse-
said ship had been then the property of the said mcnt thereof, and that the money so advanced
Peter Blight, without compelling the said Willi- to the said 'Villiam Vicary, was part of the pro-
am Vicary, to execute any Bottomry or Hypo- ceeds of the said outward cargo, but if at the
thecation therefor, And these R~joinants fur- time of advancing the samc, It was the proper
the!" propound and say, that the money advanc~ money of the Libellants, these Rt.;joinants pro-
ed b v the Libellants, as aforesaid was not ad- pound and say, the same bas heen or ought to
vanc~d upon the express stipUlation of the said h~ve b.een since retained or'reimbursed by the
'Vil1iam Vicary, that he would pledge and Hy- Sald I~lbenants out of the proceeds of the said
pothecate the said ship, nor upon the condition, €argo. And these Rejoinants further propound
securing ami reimbursing the same in case of· and say,that the agreement of the 2lst of :May
thc safe arrival of the said ship Lavinia at the 1800, acknowledged in the said Re}Jlication~f
port of Philadelphia, but]t was advanced under the said Libellants, would affect the right of t]JC
the circmnstances by these Rejoinants in their said Libellants to sne and prosecnte for the rc-
answer and in their R~joinuer set forth, upon a covery of the amount due llpon the said Bot-
stipUlation also that the said William Vic aI')- tomry or Hypothecation, if any thing was there-
should bind himself: his executors and adminis- upon dne (which these Rejoinants do not admit)
trators to reimburse the same. And these Re- for the term of six months, from the clate of the
joinants further propound and say, that the mo- said agreement of the 2d of l\'lay, 1800: and
ney in the said pretended Bottomry and Hypo- th~t by reason of the Libellants suing upon tlle
thecation mentioned, was advanced at a. time smd Bottomry or Hypothecation befo.re the cx-
when the said outward cargo or the proceeds piration of the said term of six months, these
thereof remained in the hands of the libell- He;joinants would be deprived (according to tneil'
ants, and before the same, or any part thereof, respect~ve rights) of the benefit and advantage
was or could be applied agr~eably to the said of makmg the payment of one thousand six :hun-
contract of the 10th of February 1800, and dred and ten pounds, in the said last mentioned
that the money so advanced to the said \Vil1iam agre'emcnt, stipulated in full satisfaction of the-
Precedents.
Precedents. 185
iaid Bottomry debt. which however t~ese R~..
joinants, do not admit to be in any WIse or 10 then and there, to wit, on the day and year a·
any part due and payable, foresaid, at the District aforesaid, made oath
A. j. DALLAS. before the said Robert Purviance on the Holy
Proctor for the Rejoinan~s. Evangels of Almighty God, t1mt he the said
Aquilla Brown was the sole owner of the said
- ship called the Anthony 1J1an~'ill, !h~ said o~th
being then and there made by the saul Aqmlla
]J'OI.FElTURE BroWD, and so as aforesaid administered by the
said Robert Purviance; Collector as aforesaid;
Of a ship on account ofher being falsely registered. in order to the registry of the said ship, and
with the intent to obtain, and for the 11Ul'pose
UNITED STATE:; OF AMERICA, MARYLAND DISTRICT, 58, of obtaining a register for the said ship, pursuant
to the statlle of fhe United States in such case
To the Honourable JAMES WJNCHESTER, JUdge of made and provided. And the said Attorney :in
the District Court) of the United States) for the name Bnd on behalf of the said United Sfates
the lltIaryland District. doth aver, and in fact say, that the said fact in
the said oath alleged, that the said Aquilla
IN the name and on the' behalf of the United Brown, was the soJe owner of the said ship caned
States of America, Zebulon Hollingsworth, At. the Anthony ~Mangin, within the knowledge of
torney of the Uniterl States for l\'Iaryland Dis- the said Aquilla Brown so swearing as aforesaid
b-iet, cometh jnto Court here ;n his proper per- was not true, to wit, on the day and year afore-
son , and 0O"iveth the Court here to understand
• h said, at the District aforesaid, but the said At-
and be informed, that heretofore, to Wlt, on t e torney in the name and on the behalf of the
25th November 1801, at the Port of Baltimore, said United States doth in fact aver and say, that
in Maryland District, a certain AquiJIa Brown, the said fact so aneged in tl1e said oath was
a citizen of the United States of America and of false and untrue, and that within the knowledge
the City of Baltimore, being a paM 0;vner of a of the said Aquilla Brown, a certain Herman
certain ship called the Anthony lYlangm, appear- H~nry Hackeman, an aIien, and not a citizen
ed before ~bert Purviance, Collector of the of the United States of America, was part o\Y-
Customs for the United States of America at ncr of the said ship called the Anthony .1Uangin,
the Port of Baltimore in Maryland District, he at the time of making the said oath by the said
the said Robert Purviance being then and there Aquilla Brown as aforesaid, with the intent and
the officer authorised by liJ,w to make registry for the purpose aforesaid, and in order to the reo
of the said ship; and the said Aquilla :Brown 7.
Precedents. 137
186 .Precedents.
the sea letter obtained for the said Rhip on her
gistry of the said ship, to wit, on the day .~d first voyalYe was obtained for her as the sole pro-
year aIoresaid~ at the district aforesaid~ for WhlCh perty of the said Brown. This ~lairnant fu.r-
causes the s~ld Rnbert Purviance, CoUector as ther saith, that on the vDyage wInch the smd
aforesaid, hath seized the said ship, her tackle~ ship first made, was to England· and back to
apparel and furniture, .as by law forfeited.--:- Baltimore~ and which was the only voyage per-
,Vherefore the said Attorney prayeth the advlce formed by her while sIle was owned by saifl
of the Court here in the premises and that due
j
Brown, this Claimant was master of said ship,
process of law may issue against the said ship, and that a considerable part of her cargo was
her tackle, apparel and furniture, amI that due on freight, and that the whole of the said freight
proclamation with monition may issue in this be~
half to cite and admonish all persons to be and
in
wa.s, England, applied to the use of the sa~tl
Brown alone, and that on the retilrn of the salt!
appear at a day and place by your honour to be ship to the Port of Baltimore, this Claimant 8tiU
named to show cause, if any they have, why the continuing master thereof, the ih~ight which be-
said ship called the Anthony lfilangin, her tackle, came due on the return voyage was received
apparel and furniture should not be condemned by the assignees of t~e said Brown, l1e having .
and sold, and the money arising from said sale :in the intermediate time been declared a bank·
to be distributed according to la\", and that she l'Upt, and by them applied to the use of the cre-
be so condemned and sold and the money so dis- ditors of the said Brown. This Claimant fur-
tributed, prayeih. ther answering saith, that upon the return of
ZER. HOLLINGSWORTH, . the said ship to the said ~ort of Baltirn.0re, 8.h[';
Attorney for the U. S. for Alaryland Dist. was taken into the possessIOn of the SaId assl~
nees as having been the property of the Sald
Brown, and was there puhlickly advertised in
the newspapers of tIlat city for sale as the pro-
CLAnl AND ANSWER.
pCI'ty of the said Brown, anrl was so so]{~ as such
in the city of Baltimore· at publick au~tlOn, anrJ~
And now comes here Thomas \V. NOnTIan
as this Claimant believes with the privity and
by Luther Martin, his Proctor, and claims the
knowledge of the said Robert Purviance. and
said ship, her tackle apparel and furniture, and
the other officers of the customs for the Port ()f
for his claim and answer unto the said Lip
be], he sooth that the said ship was originally Baltimore, and that at the said sale, the said ship
&c. was purch~sed by one Michael SaundersnD,
built in the State of Virginia, and that when she
a citizen of the U nlted States, he being the
was completely fitted for sea she was registered
highest bidder. to whom a register was duly
as the sole property of the said Brown, and that
188. Precedents. Precedents. 189
granted by the said Roberl Purviance, collector and detention of the said ship, &c. so unlawfully
as aforesaId at the Port of Baltimore. This made, to him decreed, &c.
C~aimant further answering saith, that "vhile the LUTHER MAR.TIN,
smd Michael Saunderson was owner of the sairl~i for the Claimant.
ship, she made a voyage to England and return·
ed again to the Port of Baltimore, and that up- 14th May,- 1803, A warrairlt ofappraisement
on the return of the said ship to the Port of being ismed agreeably to the provisions of the
Baltimore this Claimant purchased the said ship act of Congress, and the ship valued by three
fr?m the sai~l IVlic.hael Saunrlerson, and duly ob· persons appointed by the court, the Claiment:fi1~
tamed a regIster for the saidsmp Ii'om the said ed a bond, with condition that he should ~. pay
Robert Purviance Collector, as afOI'esaid at the the valuation, in ca~e the ship should be con-
Port of Baltimore aforesaid, and that the said Ro- demned and in all things comply with the final
bert Purviance, and the other officers of the judgment to be rendered in the premises."
cllstoms at the said Port when the register was
granted to the said .IVlich<lcl Saundcl'son, and
also when the register was granted to this Claim-
-
ant well knew that the said ship \vas the same for To the IIonourable RlCHARD PETERS, Esq. ~c.
which the said Brown had obtained a register
THE Libel of Phineas Bond, Consul General
as, aforesaid. ThiS' Claimant further answering
sooth, that after he had thus obtained a register of his 1VI~iesty the king of the United Kingdom
for the said ship, be prosecuted one v~vage of Great Britain and Ireland in the United States
with her to England, and from thence to the"Port of America for the l\'Iiddle and Southern State~
of Baltimore; immediately after her arrival at of the same, respectfully showeth :
which port she was seized as aforesaid, and that That some time about the - day of -
he doth not know, believe or admit that the said last, as this Libellant hath been informed and
ship was part owned by the said Hackman or believes, a certain brigantine, tbe name whereof
any other person except the said Brown at the is unknown to him, laden with a cargo of Sugar?
time when the said Brown made oath as afore· Rum and Coffee, put up in bags, and in hogs-
said. 'Vherefore the said Norman doth claim heads, tierces and ba~~:rels, marked T. and C.
the said ship, her tackle, &c. as his property and the property of certain subjects of the king of
prays that the same may be restored to him, and the said United Kingdom, sailed from the Island
that he may have his costs in this matter sustain- of Barbadoes bOlll1d to the port of Charleston:
ed and his damages occasioned by the seizure in the State of South Carolina, consigned to
:l\tlessrs. Tunno and Cox, Merchants of Char,
]90 Prtc~dents,
Precedents, 191
leston afore,~:Ud. That, while JawfuUy and peace-
ga.imJt the brigantine in which it was shipp~,d
ably pursuing the said voyage, the said brigan-
from Barbadoes bound to Charleston aforesaul,
tine was, on or about the - day o f - - last,
violently and forcibly taken on the high seas ,by by any Court of.. lawful )uris{~iction, and t~e
Rum, Sugar and Colfee ?-foresmd, were ?rought
a certain privat.eer, mannerl by persons .calling
as aforesaid into the UnIted Statesand mto ,the
themselves citizens of the French RepublIc, and
port ofPhiladelphia, in o~der that ~he same ~Ight
by them carried, togetller with the cargo afore-
said, to St. Jago de Cuba, being within the Dom· be soId, 1·n manifest violation of amItyhand 'd
frlend-
II '
inions ofhis Majesty the king of Spain, betw~en ship so happily subsisting betwe~n t ~ Sal .... lll-
whom and the king of the saifl United Kingdom, ted States, and the king oftbe ~al(I Un~tcd K!ng-
dom, and of the neutrality of the SaId Ulliteu.
there then was and still is peace and amity,-
That the said cargo was unladen from the said States. , 1 .I
bl'iO'antinc at St. JuO'o de Cuba aforesaid, and
The said Libellant, therefore prays, t le au
the;c reship pel! on b~ard a certain other brigan- of the process of this.Honourable Court, to a1'-
'est and attach the SaId Rum, Coffee and Sugar.
':nd that the same may be decreed to be res~ord
tine calIed the Potowmac, commanded by cap-
tain--' Tupper, bound to the port ofBaltimore
in tlle State of YIaryland. That the said cargo,
to him, on behalf ofthe ~wners thereof,. subjects
after the arrival of the said brigantine Poto'Wmac of the king of United Kingd~m aforesal~l, toge-
nt Baltimore aforesaid, was there again unladen
the)"with damages to be paul by, the ~aId John
C rdiner 1'r, for th~ .uniust detentlOll of the sa.me.
and reshipped on boaJ'd the schooner lUinrrva, ..fa '. ~ "I'V r], .
t, ILGJIJlL\N,
captain \Vi]son bound to the port of Philadel~
j
Proctor for the Libellant.
phia. 111at seventeen hogsheads of Rum, two
hunnred and eight bag.~ of Coffee and fifty-two =
hogsheads and tierces, and seventy barrels of
Sugar, or tIle greater part thereof, part of the CI,Ali\I.
said cargo, have been brought into the port of
Philadelphia, in the District of Pennsylvania, and THE" said John Gardiner, junior, a citizen of
within the jurisdiction of this honourable Court, the United States of America, and Consignee
and are now there in the iJossession of a certam of said Goods, on behalf of - - ~agga~ and
.John Gardiner, junior, of the said city ofPhila- :,,~
and. Caldwell, at the time of the arrest and sei- will grant a citation, retul'llable at the next Court
zure t~ereof by the Libellant, and claims, also, day to the said Peter Blight, to show cause jf
on theIr behalf, all such costs, char~es, damaQ'es any he has, why your Petitioners should not be
and expenses as have,arisen, orshall,"'or may arise admitted to give seclli---ity for the safe return of
by reason of the seIzure and detention of the the same vessel, an"d thereupon proceed with
same. her on the said intended voyage.
WILLINGS & FRANCIS,
JOHN GARDINER, JUNIOR.
SAl'IIUEL S. COOPER.
THE Petition of Willing~ and Francis and THE answer of Peter Blight, of the City Df
Samuel 8. Cooper, respectfully s}JOweth';' Philadelphia, Mcrchant, to the Petition of'Vu-
That your Petitioners are owners of three lings and Francis, and Samuel S. Cooper, res-
fourths J.l~rts of the brigantine Amelia. That pectfully showeth:
your PetItloners are desirous of scnrlinO' the same That the Respondent admits that tIle said Pe-
v~ssel on a voya.ge to Saint Sebastia~B} in the titioners are owners of three fourth parts of the
Kmgdom ~f Sparn, andfrom* Saint Sebastians brigantine Amelia, but this Respondent avers
back to Phlladelphia. th~t before the filing of the sai(l petition, he had
That the remaining one fourth part of the same assigned all his property, real and personal
ve~sel bel~ngs to Peter Blight, of the city of whatsoever and wheresoever, to George Blight,
Phl1a~elphla, Merchant, who refuses to join in Thomas Murgatroyd and William Cole, in trust
the Bald voyage, or to suffer the same vessel to for the benent of his creditors, and therefore he
sail on your Petitioners account. is no longer owner of the remaining one fourth
You: Petitioners therefore. respectfully praJ part of the same vessel, nor entitled, without the
that t~llS Honourable Court~ conforming to the discretions, authorities and approbation of his
estabhshed Law and usage, of the Admiralty, said trustees to join in the voyage, lU the said
petition mentioned, or to suffer the said vessel
.. The words in Italicks were inserted in the Libel to sail on the said Petitioners ownaccount.
after answer filed, by consent.
Precedent:.:" IH5
Precedents.
the High Seas. The ~esronden~prays tha~ the
Ami this Respondent further answering saith1 said petition may be clisrrussed WIth costs, &c.
that he believes his salcI trustees would be wil- A. J~ DAl.LAS,
ling (as he himself would be,) to join in sending Pmclorfor the Respondent.
the said vessel, on allY voyage for the general
benefit of the mvners, provided such voyage
was truly and full,)' made known to them; but tJlt~
said Petitioners have not set forth to what place DECRJm.
or places it lS intended to send the said vessel
after he!' an-ivaI at Saint Sebastians; and this Re- AND now this 2Qd day of August 1800, it is
spondent has bee~ informed and avers, that it is ordered by the Court, !lmt ~he Pctit~on~rs be
not intended that the said vessel should retnrn permitted to send the brlgantll1e Ameba, m the
ii-om Saint Sebastians immediately to PhiJade- petition mentioned, on a voyage ii'om l)hilad~l
phia, but that she sllOuld be employed by the phia to St. Sebastians and ~ack ~o P~i]ade1phm,
said Petitioners, in a long, hazardous and circui- upon their entering into ~bpulutlOn m the s.um
tOllS voyage, 110t mentioned or described in the of six thousand dollars WIth approved sceuI"lty,
said petition. as well for the safe return of the same vesse,1 to
And this Regpondent further answering saith, Philadelphia, as for tIle payment to th~ s~i~ Re-
that the Petitioners l1ave not in their said petition spondent, his Heirs, Executo.rs. amI A.d'nlmstra-
offered to pnrchase, the late share of the He- tors, of oTIe fourth of the frclght of the same
spomlent in tIle said vessel assigned as a{()resaid, vessel for the said voyage out amI home, deduc-
to his said trustees, nor have they offered to ting aJI reasonable aml just mercantile charges.
sell the said vessel, and distribute the money a-
mong the owners in }Jroportion, nor have they
offered to give security for paying any part of
the profits of the voyage or fi>eight of the said
vessel, to this Respondent, or his said trustees,
nor- have they offered to give security for the re- .Ji'rom a JYIagistl>ate for the Survey l?f (l. Vessel.
tnrn of the said vessel within a limited time.
'Vherefo're and because this Conrt has not JU- To A, n, C, D.. &c,
risdiction of the case, the saine not being a ci"il
cause of Admiralty and Maritime jurisdiction, You are hereby required to repair on ~)oa-l'd
inasmuch as the said vessel was at the time of the brig lltJercu7'ius, now ridin~ at anchor. m t~e
nJing the ~aid petition, and nOlV is within the bo- Port of Baltimore, and f"xamme the samr. Img
dy, lW District of Pennsylvania, and not upon
196 Precedents. Precedents.
\\"hether she is too leaky or otherwise unfit in (whereof - new is or lately was master), her
heT' crew, body, tackle, apparel, furniture, pro- tackle, apparel and furniture, riglltly and duly
visions or stores to proceed on her intended voy- proceeding on tIle day of the date hereof, at
.age to the rort 01ra r"'tJ.
- _'I: ......
upono
.J-__ n 1
J
m rO"fLUg<.U. A..::J
...
r1ilu.
J.
the petition of the proctor of the said --'-- ex-
make report to me in wJ-iting under your hands hibiting an attestation of - of . . . . . .- ship-
or the hands of any two ofyou, whetherin any wright, and setting forth that he hath carefully
or in what respect the said brig is unfit to pro~ examined the.. ship in question, and finds llcr in
ceed on the aforesaid intended voyage, and what the following situation~ to wit. - - - - ' , - - -
addition of men, provisions or stores, or what hath decreed a .commission to issue for the ap-
repairs or alterations in hl~r body, tackle or ap- praisement and sale of t11C said ship, and direct-
parel of the said brig will be necessary] agree- ed the produce-money arising from SUell sale to
ably the act of Congress of the United States In be brought into the rcgistry of onr aforesaid
such cases made and provide d.-Given under court, to abide the furthcr order or this court~
my Hand and Seal tms first day June, seventeen (justice so requiring) ; 'Ve do therefore by these
hundred and ninetv-seyen.
. .J
presents autllorise and empo\ver :you, jointly
(Seal.) and severally, and do strictly charge and com·
maud yon, that you tAil not to rcdilce into wri·
ting a fun; true and perfect inventory of the
said sbip ..........-.- her tackle, apparel and fiirniturc)
Commission of Appraisement and Sale. and thatyotl choose one good 3mI lawful per-
son well experienced. in such a:flairs, and 5',vea.r
GEORGE the Third, by the grace of God, of bim faithfUlly t1nd justly to appraise the same ac-
Great Britain, France and Ireland, king, defen- cording to their true values, and that you 80 ap-
der of thc faith: to - of - - in the county })raise and value, or canse the same to be ap-
of - gentleman, a n d - greeting. \Vhere- praised and valued; and, the appraisement be-
as our beloved Sir James Marriott, knight and ing taken, that yon expose or cause the afore~
doctor of laws, our liclltenant of the high court said ship, her tackle, apparel and furniture, to
of Admiralty of England, and in the same court be exposed to pl.lblick sale, and t.hat you sell or
.official principal, and commissary general and cause the same to he sold to the best bidder, and
special, and president and judge thereof, lawful· t.lmt. you hring or cause to be brought tlle pro-
ly constituted in a certain cause of substraction thlCe-mOnc)T arising from such sale into the re-
of wages, civil and maritime, moved and pro- gislrv of 0111' aforesaid court, on or l)cfore the
secuted before him in (Jur'said court, on behalf ~-"-~ da.y of - next ensuing, to abide the fur-
of - late steward of the ship called the ~ ther order of our sairl COllrt ~ and tlmt at; the
198 . Prec~dents.
Precedents. 199
same time y?U duly transmit the said appraise.
ment subscnbed by you and the said appraiser power and strictly charge and commamlyou,
t-ogether with the account of such sale also su~ that you expose or cause the aforesaid ship - -
~~-=L.~~l 1~. _.~.. 4- our aloreo~lr1
,...' her tackle, apparel and furniture, to be exposed
'Sl:a-lUIJU I.JY J' Uti, ... 0 l1Trln-P nf I"'Il1T'
. ,/. v_~ J~~'o~ ~- --~
saId court, or hIS surrogate, together with these to publick sale, and that youseHor cause thes[ime
presents. to be sold to tbe best bidder; and that you hrillg
Given at London, in our aforesaid court, un- or cause to be brought the produce-money aris-
~ler the great seal thereof, the - day of_ ing from such sale into the registry of our afore-
In the year of our Lord - a n d of our reign said court, on or before the - - day o f - -
the~ next ensuing, to be there kept for the use of the
persons who shaH be entitled thereto; and that
- at the same time you duly transmit the account
of such sale, subscribed by you, to our afore-
Commission of SClle. said judge of our said court, 01' 1]i8 surrogate~
together with these presents.
GEORGE the Third, by the grace of God, of Given at London, in our aforesaid court, un-
Great Britail~, France and Ireland, king, defen- der the great seal thereof:, the - day of ---
acr of the fmth: to - of - in the coun- in the year of our Lord - - and of our reign
ty of - - gentleman, greeting. Whereas our the-
beloved Sir James ]farriott, knight and doctor
oflaws. our lieutenant of the high eourt of our
Admiralty of England, and, in the same court
official principal and commissary O'eneral and iJilonition to deli'l,'er up Ship':; Register, at the Pe-
special, and president and judge thereot law- . tHicm of an ownet' of three fourths.
fully constituted in a certain cause of - - civil
and maritime, moved and prosecuted before GEOR.GE the Third, by the grace of Gnd of
him, in our said court, on behalf of-against Great Britain, France and Ireland, king, flefcn-
the ship or vessel called the - (whereof- del" of the faith: To aU and singular our vice-
is now or,lately ~as master), her tackle, apparel admirals, justices of tlIe peace, mayors, sberifis
and furnIture, rlghtly and duly proceeding on bailiffs, constables, and all other our officers:
the day of the date hereof: at the petition of the ministers and others, as well within liberties and
proctor of dIe said - decreed a commission fra,nchises as without, greeting: 'Vhereas our be,.
to issue to sell the said ship - - her tackle, ap- loved Sir JUlnfS AIarriott, knight and doctor of
parel and furniture, (justice so requiring). We laws, our lieutenant of tIle high court of our
tln therefore by these presents authorizeJ en· Admiralty. of England, and in the same court 01:'
200 Preet-denis. Precedents. 201
ti~ial principal.and comm.issary goeneral and spe- peril which will faU thereon: and that you duly
CIaJ~ ~nd presIdent and Judge thereof, lawfully certi~y .tiS, or our aforesaid judge, or his surro-
constituted and aODointed in a certain cause or gate, what you shall do in the premises, together
~usiness, civil .an~· mariti"!e, moved and prose- with these presents.
cuted before hIm In our SaId court, on behalf of Given at London, in our aforesaid court, un·
- owner of thr~e~fourth parts of the ship der the great seal thereof, the - - day of--
called the - a~aInst the said ship, her tackle, in the year of our Lord - and of the reign
apparel and furmture, and against the the-
master a~d . . the?wner of one fourth part
of the 5~H.I ShIp m special, and all others in ge-
nera], rlglJ.tly and duly proceeding on the day DeC1'ee of Attachment.
of the .d~te hereof, by inter]ocuto~y decree~ ~t
the petItIon of the proctor of the said - - and GEORGE the tbird, by the grace of God, 01' ~
on mo.tion .of counsel decreed the possession of Great Britain, France, and Ireland, king, defend- ~
the smd shIp to be delivered to the said _ er of the faith: to all and siw Tular OliT vice-ad- ~
;\
owner of three fourth parts thereof and havino- mirals, jllstices of the peace, tlmayors, sberiff:-,
the majority of interest therein 0; to his lawftil hailiJr'l, marshals, constables, ami to nil other
OUT pfIicers, ministers and others, as ,yen within
1
attorney for his use; and at th~ further petition 1
of. the proctor of the said - alleging that the liberties and fmflchiscs as without, boTcetillCf.-
b
i
'Vhcreas our beloved sir James Marriott knio-ht I
saul. - antI - - or one of them, are in pos- I
\
seSSIOn of th~ regjst~r belonging to the said ship
and doctor of laws, our lientenant of tile ]ligh
~ decree d a motIOn to Jssue against them to CDurt of admiralty of England, and in the same I1
d~hver up the same to the said - - or to his court official principal and commissary general
Sald attorney.: we do therefore, by these pre-
sents, authoI'lze and empower youjointly and se-
and spedal, 3:nd preslflent and judge tllercof,
lawfully constItuted and appointed in a certain
cause of - civil ami ml1ritime 1 moved amI
I ,
Ij
l~h . .
202 Precedents. Precedents.
behalf may be oetter found out and enquired, rested yUH keep under safe and secure arrest,
than from bis proctor exercising from him, de- until he shall have given his pet'sonal answers on
crecd tIle said ~ to be monished and cited to oath to the positions or articles of tbe aforesaid
~.~~~~ •• k~r ._~ • _.J?_~_~_:-l ~ __ ,1-__ _ 1 '--, Oc'1.,-,.J"V'l-rraOo,.."'I:T
"'-,t.... t.l~I.lJCt..lJ
,.,..D.... ~t'I ... -n
'p\,..IlI..I.;U~'-'I.l-,
N~u,p.n in !llltl ~i"lTn~ttp.l"l ~Tl
.... 1. ..........-10 .... -'- ."'--.l.~~ilL"""""""''''';o. ..:I.J.~
tl"F\
~ll'l'~<U 1}~nl1lJ l!i'> ur Utll (IIUI (;~tIIU JUllge, or me-;
,oal'-'iI'S. "'-'l'·
,surrogate, in the cornman-hall of Doctors' Com- said cause, on the said - - aforesaid decree.
mons, situate in the parish of St. Benedict, near Given at London, in our aforesaid court, un-
St. Paul's "l]mrf, London, on the ----'- session der the great seal thereof, the - d~y of ~
of ~~ term; to wit. the - day of - ne."'(t in the veal' of our Lord - and 01 our rt'l!~n
" '
ensuing, bct\veen the hours of- and - - in the--
_the forenoon of the same day, to answer perso-
nally, by virtue of his corpornloath, to the po- JuratoTY Caution.
sitions or articles of a certain summary petition
given in and admitted in tIlC said cause on bellaH' ON - - day of - - hefore the worship!ill
of tllC said - and fl1rthcr to do· and receive _ doctor of Jaws and surrogate, in ]lis c1mm-
as to justice shall appel'tain. And whereas a de- bel'S in Doctors' Commons, London; present:
cree to tIle effect aforesaid issued accordingly;
- nDtary publick.
uncI whereas on the - day of - last, the
proctor of the said - returned the said dc- (Ship's name.)
cree, whh 'a certificate thereon indorsed,- tlmt.
the same had been dulJ executed, on tJle- 'Vhich day appeared personally - of--
day of - - - - by showing the same under seal mariner, one of the parties in tlJjs cause, who
to - lIotary pubJick, proctor for the said-- submitting himself to the jurisdiction of tlli8 court,
and by leaving with him a copy thereof; amI bound himself, his heirs, executors and admi·
whereas on the clay of the date hereof, our a· nistrators, in the sum of - - pounds of law-
forcsaid judge, at the petition Df the proctor of ful money of Great Britain, unto - - master
the said - - decreed the aforesaid - - - to be of the ship or vessel caned the - - to lWOSC:-
attached for his ~onternpt, in not giving in his eute the action commenced ill this behalf, and
answers to the said summary petition, pursua1lt to pay expenees, in case he shaH fail in this his
to tbesaid decree, (justlcc so requiring) : 'Ve suit, and to appear on - - the - day of
do therefore strictly charge and command y01], _ _ and so often afterwards as he shall be or-
jointly and severally: 11mt you omit not by rea- dered by the judge or his surrogate; and Uluess
son of any liberty or franchise, blit that you nt- lle shall so do, he doth hereby cO,nsent that ex-
tach and arrest or cause to be attached and m'- ecution sllall issue forth against him, his heirs,
l'cstcd the said - - and him so attached and ar- executors and administrators, goods and cha~te1!"
I
1.
where Roever they shall be found, to the value of parts thereof, and having the maJority. of interest
the sum above-mentioned; and the said- therein} or to his lawful attorney for hiS l.lse; and
made oath, that he would appear on - the at the further petition of, the proctor of the said
--,- day of - - and so often afterwards as llC _.- allemnQ' that the said - - and _.- or
shall be ordered by the judge or his surrogate. one of th';-~; are in possession of the register
belonging to- 1he said, ship tIle - - de~reeu a
monition to Ismc agmnst them, to dehver. up
the same unto. the said - _ . (justice so re,
·Decree of Possession. quiring): 'Ve do therefore by ~~ese pre-
sents authorize and empower you, Jomtly am},
GEORGE the Third, by the grace of God, of severally, and do strictly c11urge and command
G1'eal Britain, France and 17'eland, king, defen- you, to release the said ship the - her tac-
der of the faith: to - - gentleman, marsbal of kle, apparel and furnitl~re, from the a~est made
the ~llgh court of our admiralty of }:::ngland, and in this behalf, and;to deliver the possesswD there-
to hIS deputy whomsoever, greeting. l'/hcre~ of to the said --- owner of --- parts thereof,
as our beloved the right worshipihl Sir James and havinO'the majorlty of interest therein or j
Jt1m'l'iott, knight and doctor of ]mvs, our lieu- to his]awful attorney, lor his use: and hereof
tenant of tIJe said high court of Admiralty of fail not.
England, and in the same court official principal Given at London, in our aforesaid court, \111-
and commissary general and special, and presi- del' the great sGal thereof, the - - day of - ,-
dent and judge thereof: lalvfuHy constituted and in the year of our Lord - and of our relgn
appointed, ill a certain (,ause or business, ci'L'il the-
and maritl,'me, moved and prosecuted before
. him, in our said ·court, on behalf of - - own- =
er of - - - parts of theship caned the - 3-
g~[]st the said ship, lier tackle, apparel and fur- Restitution.
mture, and agalust - the master, a n d -
t~e owner of _.- . partor the said ship, in spe- GEORGE the Third, by the grace of God, of
emI, aO(~ all others in general, rightly and duly Great Britain, Ji'rance and Ireland, king, defen-
proceedmg on the day of the date hereof, .his der of the faith: to an persons in whose custo-
mterlocutory decree, at the petition of the proc. dy or l;ossession the undermentioned - - or
tor of the saId - and on motion of counsel de-
)
any part or parcel thereof be ,and remain., g~et
creed the possession of the said sllip to the _ ing: \Vhereas our beloved Sir J.ameli JJlan'lOtt,
to be delivered to the s~d - owner of _ knio'ht and doctor of laws, our lIeutenant of the
high court of our Admiralty of England, and in
206 Precedents, P1'eceden is .. 207
the same court oft.icial principal and commissary
. Libel for Assault and Battery.*
general and specIal, a~d pre~ident and judge
thereof, lawfully constituted, III a certain busi- '.fO 'THE HONOURABLE JAMES WINCHESTER, &c'.
n
~~
t'" »-."'T... .-I
J.L],'V T 'V'.R.
Ul;:l
1
n .... + ,.1 I-.. i'
Uluf.. prosecU,,~1. UelOre
1..' •
JJ1m, in Olii~
Said court, on our behalf, in our office of Admi- The Libel of C~orge Fortune humbly showeth :
ralty, against - found floating upon the high
seas and br~ught to the por: of - and against ,,
That vour Libellant on the - - of - - -
-..- - claImant of the sald - intervening in the y~ar - - at the port of Baltimore, ship.
rIghtly and duly proceeding on the day of th~ ped 3S a mariner on board the ship Serpent,
date hereof, by his ,interlocutory decree, by
consent ?f our procurator general, in our offi cc
I
j
I
j
whereof John ""neder ,vas master, to perlorm
no voyage on the high seas and within the jurisdic-
of ~dITIlralty, and also of' the proctor of the j tion of this Honourable COllrt, to ,vit, fi'om Bal-
salvors (whD alleged that his parties had receiv- timore to l\'Iartinique and thence back to .the
in fun of all salvage and o- said port of Baltimore:
ed the sum of -
ther demands) pronounced the said -
1ong as cl' d d " '
t b- II That during tlle said voyage to :Martinique on
aIme " an decreed the same to 0 C
be the - day of - - in the year aforesaid,
restored to the said claimant, for the use of the while your Libellant, in obedience to the orders
0";1~rs and proprietors thereof (justice so re- of the said master, was arranging some planks in
~Ulrmg): 'Ve therefore by these presents autho- the steerage to form a bed for a sick passenger,
rlze and ~mpower you, jointly and severally. "-aliI' Libellant was assaulted by the said J, 'V.
and do stnctly charge and command you to re~ ~vho jumped from the deck do;vn on .the llcad
lease the said - from the arrest made in his and shoulders of your Libellant; struck your
behalf. and to deliver and restore the same unto Libellant in the mouth with his fist, and most
the saul - tIle claimant, for the use of the cruelly and inhumanely beat your Libellant over
owners and proprietors thereof: and hereof fail ]
l
t.he head with a doubled rope to the· ends of
j
not at your periL
j '* As 1 understand that in some of the District Courts
Given at London, in our aforesaid court, U11- 1 of the United States, snits for aSSll.u\t and batterY>
?er the great seal thereof, tbe - day of ___ j though committed on the high seas, al'e not held to be
m the year of our Lord -
the-
and of our reign
I
I
within their .1nrisllictioll, it is pfopl:r to ~Hld, that libels for
such otl'enccs wcre never dismissed, on that grotmd, bv
the lme Judge \Vinchester, whnse opinion is entitled to
j the highest ~ respect. He required that the us:,;alllt and
hattelj' should be stated with every degree of mlnlltelll~R~
1 as to the time', place and m nnnCI', The respondent ,val'
J bt?un(l to be equally THU·ticll}a1· .in thr defrncc wllich he
I 1l11jrhtmake.
!
!
208 Precedents. Precedents. -
which ,,:ere f~stened a pair of sharp iron can money for damages as to your honour may seem
hooks wIth wInch he cut your Libellant on the just. And he ,yill pray, &c.
hefl:d s~".er~]y in_ se~eral places, so that your Li- WlLLIAM GWYNN~
bellant bled ~rofuseJy; and the said J. ",V. also, .Froc. pro Lib.
at the s,ame tIme, st~uck your LibeJlant on the
head wIth a large blUet of wood; which he at:
terwards threw at yonr Libellant. .
,Y ou; Libellant further snoweth, that while the
saId shIp lay at ~lal'tinique, to wit, .on the _ Answer to a Libel for Assault and Battery.
d~y of.-.- aforesaid, because lIe requested the
s~ld. J. W. to hire and employ two seamen to as- TO THE HONOURABLE JAYlIES WINCHESTER, &c.
SIst In navigating the ship in the place of two who
had run aw~y, was assaulted and severely beat- The answer and defence of 'Vi11iam Core,
en l~y the sruel J, 'V, with a rope, and afterwards mate of the ShIp Becky, to the Libel of \Villiam
f~rcIbly taken from the vessel to the town of St. Hampton.
PIerre, where .your, Libellant was imprisoned This Respondent saving and reserving an
and there (~etmnccl In prison, for the space of manner of benefit of exceptions to the said Li-
tw.enty four hours until the next day, when thf': bel and the many untruths therein contained for
shIp was ready to sail. ~ answer tlleI'eto, saith,
T? the ~~d;t.ber~fore, that your L-ibcJJant may That the Libellant did ship as a mariner on
o?tam sa~lstactlOn In damages for the injuries by board tlle Becky to perform the voyage stated
hIm sustamed in t~e premis~s, lIe pray~ proce;s in his Libel ; but this Respondent denies that
of attachme~t agalnst the saul J. '\V. that he may the Libellant during aU the said voyage per-
~nswer to tIllS Libel llpon oath, and the Jol10,;- fonned his duty as a faithful and obedient mari-
mg ner; for this Respondent says, that at the time
. . Inte'J'rogatories ; complained of, ill the said Libel, there being
1st. DId :fOll assa~t and beat the Libel1ant at tben a heavy gale and high sea, this Respondent,
th~ se~eral tImes and In the manner stated in tbe as his duty and the safety of the vessel required,
Libel, . If yea~ what was the 'cause ? directed the Libellant, who was then aloft, to
2. Did you strike the Libellant with the can shift the foresail, and this Respondent handed
hooks'? If yea, how often did you strike him) the Libellant an earring, or small rope, for the
.And your Libellant prays that by Decree of purpose of tying the said sail; that the Libel-
thIS Honourable Court, tbe said J.W, may be lant refused to do as he was directed, on pre-
compelled to pay your Libellant such sum of tence that the rope wa~ too i.hort : _and when thi~
cc .
210 Precedents. Precedents, 211
vessel then was, for want of a sail to keep her to On this-day of - 1801, befor~ me,. a
the wind, insisted that the Libellant shOlild make
... '1
tue
. . .1" .I -> ,,-'
anemp1; 1;0 HtS1;en
->01
tUE:
_ ~"1
saIl,
-"..1 __
me LlUcUant
'"Y_~1- 1"1 ..l __
r~-
Justice.oft~e_~e~~~!~:~~~t~~~na:c::~;;
came the aoovc J."'-'oY~~------7
plied.. (( I wont pass it-I'll be d-d if I do for th that the facts as stated in the above an
.oa ,
you or any body else :" That this Respondent swer are true. 0, D.
then went to the Libellant and stnlck him once
with his open hand on the side of the head, amI
again ordered him to pass the ean'ing: that the
Llbellant still refused and attempted to strike
this Respondent, and continuer! to resist and re-
fuse to perform his duty, until this Respondent
struck him twice with his fist; and then the Li-
bellant fastened the sail with the same earring
wbich he, at first, said was too sbort.
This Respondent further says that he did not Fl~IS,
beat tlle Libellant at any time during the said
voyage, in any other manner than is above stat-
ed; and this Respondent denies that the life of
the Libellant was in any manner endangered by
the beating 01' correction above stated, or that llt'
was thereby prevented Ii'om doing his duty or o-
therwise damaged as stated in the aforesaid Li-
bel. And this Respondent says that his duty as
-an officer and the safety of the vessel made it ne-
cessary for him to correct the Libellant as be·
fore stated.
\Vherefore this Respondent prays that he may
be considered as justified in the premises and be
hence dismissed with costs. And he will pray._
&c.
WILLIAM GWYNN,
Proc. pro Res.
18th May, 1801.
CONTENTS.