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And the said plaintiffs bring here into court the letters testamentary granted to the said plaintiffs, by the surrogate of Kings county, whereby it fully appears to the said court here, that the said plaintiffs are the executors of the said last will and testament of the said Peter W. Radcliff, deceased, and have the execution thereof, fc.?
( No. 4.)
Form of a libel in personam in admiralty, for damages
arising from negligent collision. The mere formal parts of the pleading, or such as are peculiar to the court, are in italics.
To the Hon. Samuel R. Betts, Judge of the District Court of
the United States for the Southern district of New-York.
The libel and complaint of Ichabod Rogers, John C. Dormandy and George H. Powers, of the city of Hudson, county of Columbia and State of New - York, owners of the sloop Betsy and Ann, her tackle, apparel and furniture, against Amos Comstock, master of the steamboat Commerce, in a cause of collision, civil and maritime. And thereupon the said Ichabod Rogers, John C. Dormandy, and George H. Powers allege and articulately propound as follows ;
The foregoing clause is the usual profert required to be made in pleading letters testamentary, or of administration, a deed or other sealed instrument. The omission to make profert was ground of special demurrer. Profert is now no longer necessary. (Plead., 790; Welles o. Webster, 9 How., 251.) Instead of the foregoing, the complaint should contain in the body thereof, the allegation that the plaintiffs were named as executors in the will, and duly qualified as such, and took upon themselves the execution thereof. (Seldon v. Hoy, 11 How., 11.)
First. That on or about the twenty-fifth day of June, 1848, the sloop Betsy and Ann, whereof John C. Dormandy was master, was lying at anchor in the Hudson, or North river, in the southern district of New-York, within the ebb and flow of the tide, and within the admiralty and maritime jurisdiction of this honorable court, at the distance of four or five miles below the town of Catskill. That the said sloop lay close under the west shore of said river, heading up. That she had her sails down, and at her shrouds, at least ten feet above her deck, had a good and sufficient light burning, and was at said place safely anchored, and in all respects tight, staunch and strong, well manned, tackled appareled and appointed.
Second. That on the said twenty-fifth day of June, and at or about dawn, and between the hours of two and five o'clock in the morning, the steamboat Commerce, whereof the said Amos Comstock was then master, having in tow one or more barges or canal boats, coming down the river from a point above where the said Betsy and Ann lay at anchor, was negligently and with great force and violence run against and into the said sloop Betsy and Ann, and the said canal boat and barges, or one of them, was violently thrown against and run into the said sloop, whereby the bowsprit and the bowsprit shrouds of the latter were broken off, and the said shrouds, composed of iron links or chain, were thrown into the river and lost by said collision, and the jib sail of said sloop thereby torn, and the hull of said sloop greatly damaged.
Third. That the cost and expense of reparing the said sloops bowsprit and shrouds and jib sails, amounts to the sum of fifty dollars or thereabouts, and that the hull of said vessel was damaged to the amount of ten dollars or thereabouts. That by reason of said damage to said sloop, she was unable to continue her course, and had to lie by for three days, and that by reason of said sloop having been thus run foul of and damaged as aforesaid, the libellants have sustained damage in the whole amounting to ninety dollars.
Fourth. That the libellants have duly notified the owners and master of said steamboat of said damage to said sloop and requested them to pay the amount thereof, which they have refused to do.
Fifth. That all and singular the premises are true, and within the admiralty and maritime jurisdiction of this honorrable court, in verification whereof, if denied, the libellants crave leave to refer to the depositions and other proofs to be by them exhibited in this cause.
Wherefore the libellants pray that a warrant of arrest may issue against the said Amos Carpenter, and he be compelled to give security according to law and the practice of this court, and also to appear and answer, all and singular, the matters above propounded, and that this court would be pleased to pronounce for the damages aforesaid, and for such other and different relief in the premises as shall in law and justice appertain, and also to condemn the said Comstock in costs.?
JOHN C. DORMANDY.
1 This is mere matter of form and entirely unnecessary.
* The pleadings in cases of libel in the admiralty courts are entirely analogous to pleadings under the Code. Indeed the mode of allegation is the same, and with the exception of the formal parts of the commencement and conclusion (which are in italics above) an admiralty pleading would answer in all respects as a pleading under the Code. In regard to the rules regulating admiralty pleadings and the analogy between them and pleadings under the Code, see Plead. pp. 336–340.
It will be observed that the various allegations or propositions which together constitute the cause of action, are set forth in sepa(No. 5.)
Form of a libel in rem for towage service by an incorporated
company against a foreign vessel.
To the Honorable Samuel R. Betts, Judge of the District
Court of the United States for the Southern District of New-York.
The libel and complaint of the Hudson River Steamboat Company, (a corporation duly incorporated by and under the laws of the State of New Jersey), against the boat or barge Highlander, whereof D. E. Witherwax now is, or late was master, her tackle, apparel and furniture, and against all persons intervening for their interest therein, in a cause of contract, civil and maritime.
And thereupon the said libellants allege and propound as follows:
First. That these libellants are a corporation, duly incorporated by an act of the Legislature of the State of New Jersey, and at the time of the performance of the services mentioned in the second article of this libel, they were owners of the steamboat Cayuga, engaged in towing on the waters of the Hudson river.
Second. That as these libellants are informed and believe, heretofore, to wit, between the eighteenth day of Septem
rate articles. This has been recommended, and is sometimes adopted, 'as the best mode of the statement of a cause of action under our present system. It certainly enables the pleader to set forth his facts with greater precision and distinctness; and it enables the defendant, as will be seen in the precedents hereafter given, (see Nos. 9, 10 post,] to answer directly and seriatim each separate article or proposition. The form of a.complaint under the Code, so constructed is given No. 6 posl; and of an answer to the same, No. 10.
ber, 1854, and the seventeenth day of November, 1854, and on or about the dates mentioned in the account to this libel annexed, and marked schedule A., at the request of the master or agent in that behalf of said boat or barge Highlander, the said libellants, by their said steamboat Cayuga, towed the said boat or barge Highlander from the city of New York to the city of Albany, and from the city of Albany to the city of New York, as in said account mentioned and set forth. That under the agreement of the parties, or as a reasonable compensation for their services in that behalf, the said libellants are entitled to have and claim of said boat or barge Highlander, at the rates and the amounts charged in said account, besides interest.
Third. That as these libellants are informed and believe, said boat or barge Highlander was a foreign vessel, owned by some person or persons resident out of the State of New-York, and that all of said services were performed for said boat or barge Highlander, and at the request of her master or agent in that behalf, and were to be performed, and were performed on the waters of the Hudson river, within the ebb and flow of the tide and the admiralty and maritime jurisdiction of this honorable court.
Fourth. That although payment for the said services has been demanded of the master or agent of said boat or barge, they have hitherto neglected and refused to pay the same or any part thereof, and that there is justly due these libellants as aforesaid, the sum of one hundred dollars, besides interest.
Fifth. That said boat or barge Highlander is now lying in the Port of New-York, and that all and singular the premises are true, &c., [as in preceding form.]
Wherefore the libellants pray that process in due form of law, according to the course of courts of admiralty and of this honorable court in cases of admiralty and