fact may be), is material and necessary for this deponent in the prose cution of such cause; that the said E. F. lives at more than one hundred miles from where the court, at which this deponent expects the said cause will be tried, is appointed by law to be held (or, is bound on a voyage to sea; or, is about to go out of the district in which the said cause is pending, and to a greater distance than one hundred miles, as this deponent is informed and verily believes; or, is so aged; or, so infirm as to render it probable that he will not be able to attend as a witness at the trial of such cause). And this deponent further says that, as he is informed and believes, C. D., the above named defendant, resides at miles distant from about the place where the examination of the said witness is expected to be taken; and that, as he is also informed and believes, G. H., the attorney of the said C. D., resides at miles from as aforesaid. about ORDER THEREON. Circuit (or District) Court, &c., (as in the Affidavit.) A. B. V. C. D. } Let E. F., the witness named in the above (or within) affidavit, be examined de bene esse before me accordingly, at on the day of at o'clock in the noon. [If either the defendant or his attorney resides within one hundred miles of the place of examination, then add] and let days' notice be given to the said defendant (or to G. H., the attorney of the said defendant, as either may be nearest), of such examination. NOTICE TO THE OPPOSITE PARTY OR HIS ATTORNEY. Circuit (or District) Court, &c., (as above.) A. B. V. C. D. } Sir, you are hereby notified that E. F. will be examined de bene esse, before me,' at at on the day of o'clock in the noon, as a witness for the above plaintiff, according to the act of Congress in such case made and provided ; The act requires a "notification from the magistrate." It is safer, therefore, that the notice should purport to emanate from, and be signed by him. at which time and place you are entitled by law to be present, and to put interrogatories to the said witness. Dated, &c. To C. D., the above named defendant, or, (F. G., attorney for the above named defendant.) J. S. THE DEPOSITION. day of Be it remembered, that on the one thousand, &c., at A. B. personally appeared before me, J. S., a commissioner appointed under the laws of the United States to take affidavits and acknowledgments of bail (or as the case may be), and made oath (or if the application is made by another in behalf of the party, or on an affidavit made by such party, before a judge of the United States or commissioner elsewhere, then say, application was made to me, J. S., &c., upon the affidavit of A. B., stating) that he, the said A. B., was plaintiff in a suit then depending in the Circuit Court of the United States, for the Circuit and District of Court of the United States, in and for the District of (or District wherein C. D. was defendant, that the testimony of E. F., of mariner, was material and necessary for him, the said plaintiff, in the prosecution of such suit, and that he, the said E. F., lived at more than one hundred miles from where the court, at which the said plaintiff expected the said cause would be tried, was appointed by law to be held (or otherwise as the case may be, according to the affidavit); that C. D., the above named defendant, resided at about miles from attorney, resided at about aforesaid; and that G. H., his miles from aforesaid; and the said A. B. requested me (or I was requested in behalf of the said A. B.) that the said E. F. might be examined according to the directions of the act of Congress in such case made and provided. Whereupon I ordered that the said E. F. should be examined de bene esse before me at days' notice should be given to the said C. D. (or G. H.) of such examination, to the end, that he might if he should see fit, be present at the examination and put interrogatories; and I having satisfactory proof that such notice had been given'] and as well the said A. B. as the said C. D. [and that 'If both the opposite party and his attorney reside more than one hundred miles distant, and no notice is on that account given, the part included in brackets is of course to be omitted. (or, if the defendant does not appear in person, or by attorney, then say, the said A. B.) appearing before me at day of said examination. on this I have therefore proceeded with the And the said E. F. being carefully examined and cautioned, and duly sworn (or affirmed), to testify the truth, the whole truth, and nothing bat the truth, saith, &c. (stating clearly every pertinent declaration of the witness and his replies to the questions put by, or at the instance of either party.) And I do further certify, that the preceding deposition was reduced to writing by me (or by the said E. F. in my presence), and signed by the said E. F., and that I am not of counsel or attorney for either of the parties to the said suit, nor am I interested in the event thereof. J. S. IV. IN CASES OF MUNICIPAL SEIZURE. LIBELS OF INFORMATION AND INFORMATIONS. [Vide, supra, p. 512, et seq.] Inasmuch as these pleadings are always drawn by public officers, who may reasonably be presumed to be fully competent to the proper discharge of their duties, and especially as definite forms deemed to be sufficient and appropriate, are probably already in use in the respective districts, the insertion of the following precedents under this head may seem to be superfluous. These reasons are certainly sufficient to render it unnecessary, if not improper, to attempt to give precedents for every case of forfeiture under the laws of the United States. I have accordingly restricted. myself to a few cases by way of example. And I trust those I have inserted will at least be worth the space they occupy, for the purpose, if for no other, of assisting the inexperienced general practitioner, in acquiring clearer and more satisfactory views of the nature of the proceeding to which these pleadings belong. 1 Libels of this description, being preferred by a public prosecutor in virtue of his office, are frequently and properly called Libels of Information, in contradistinction to libels filed by private persons in ordinary admirality suits. In some of the reported cases they are loosely called Informations. The correspondent pleading, by which suits in cases of seizure are instituted on the common law, or exchequer, side of the court is always denominated simply an Information. COMMENCEMENT OF THE LIBEL OR INFORMATION. District Court of the United States of America. District of To the judge of the District Court of the United States for the District of A. B., attorney of the United States for the said District of who prosecutes for the said United States, exhibits this his libel of information [or information] against the ship Juno, her boats, tackle, apparel and furniture [or the steamer Helen, her engine, boiler, tackle, apparel and furniture; or six bales of broadcloths, or, &c.], and against all persons lawfully intervening for their interest therein. And thereupon, the said A. B. doth allege, articulately propound and give the said judge to understand, that on the the year1 aforesaid, on waters navigable from the sea by vessels of ten tons or more burden [or on waters not navigable, &c., or on land, as the case may be], C. D., Esquire, collector of customs for the collection district of did seize the aforesaid ship Juno, her boats, tackle, apparel and furniture [or, &c.], and now holds the same in his custody, within the district of aforesaid, as forfeited to the said at day of in the District of United States, for the causes hereinafter stated, to wit: in First. For that, &c. [Here set out in distinct articles, the matters relied on as grounds of forfeiture.] The following neatly drawn precedent for the introductory part of a libel is taken from the appendix of Mr. Dunlap's "Practice of Courts of Admiralty." Though framed [by Mr. Sumner] long prior to the date of the 22d rule, it will be seen to be in conformity with its requirements. The well known general rule in pleading is that the day is not material; and the rule is supposed to be applicable here. But as the true day of the seizure ought to be, and probably always is, communicated by the seizing officer to the district attorney, it is easy, and on some accounts advisable, to state the true day. * The 22d rule, regulating admiralty proceedings (vide, supra, p. 519, note), requires "the District within which the property is brought" to be stated. This clause doubtless has reference to seizures made on the high seas. Perhaps the allegation in the above form, that the collector "now holds the same in custody, within the district of aforesaid," would be a sufficient compliance with this requirement, since the presence of the property is the important point, and implies, moreover, that it was brought into that district; but it is better, and very easy, to comply literally with the rule. United States of America, District of Massachusetts, ss. District Court, Term, 18 To the Hon. JOHN DAVIS, Judge of the District Court of the United States for the District aforesaid. Be it remembered, That on this year of our Lord eighteen hundred and day in the before the Hon. JOHN DAVIS, judge as aforesaid, comes in his own proper person, Esq., attorney of the United States for the aforesaid District of Massachusetts, and in the name and behalf, as well of the United States as of Esq., collector for the port of in said district, and of all other persons concerned, propounds and gives the said judge to understand and be informed, that on the in the year aforesaid, at in the District of Massachusetts aforesaid, and “on waters which were navigable from the sea by vessels of ten or more tons burden," the said collector as aforesaid, did seize day of the following goods, wares and merchandise, to wit: [here insert the goods seized], and now hath the same in his custody as being forfeited for the causes hereinafter mentioned, to wit: 1. For that, &c. ALLEGED GROUNDS OF FORFEITURE FOUNDED ON THE ACT OF 2 MARCH, 1821 (CH. 14: 3 STAT. AT LARGE, P. 616), AGAINST GOODS FOR HAVING BEEN IMPORTED FROM AN ADJACENT FOREIGN TERRITORY INTO THE UNITED STATES WITHOUT THE DELIVERY OF A MANIFEST. First. For that heretofore, that is to say, on the day of [some day not later than that on which the seizure is stated to have been made], in the year of our Lord one thousand eight hnndred and the merchandise aforesaid being subject to duty on being imported into the said United States, was imported and brought from some foreign territory adjacent to the said United States, to the said attorney of the United States unknown, into some port or place within the said United States, to the said attorney of This is the term used in the act, and must, therefore, be considered sufficiently exact for every case; though, as descriptive of some sorts of personal property subject to seizure (domestic animals, for example), its use is not in accordance with common usage. 2 When the seizure is made within the territory of the United States, the place of seizure, as we have seen, determines the jurisdiction without reference to the place where the offense was committed. It is supposed, therefore, to be unnecessary to allege that the importation was made into the judicial district where the suit is instituted. |