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FORM XXXIV.-MOTION TO DISMISS OR TO AFFIRM.
In the Supreme Court of the United States. October Term, 1891. No. 888 BENJAMIN H. TATEM, JOHN C. CURTIN, and WILLIAM
G. BAILEY, Executors of Walter F. Chadwick, Deceased, and NORMA D. CHADWICK, Appellants,
ALTHA CHADWICK. Comes now the appellee, by her counsel appearing in that behalf, and moves the Court to dismiss the appeal in the above-entitled cause for want of jurisdiction, because the judgment or decree from which the said appeal purports to have been taken is the judgment or decree of the Supreme Court of one of the United States, to wit, the Supreme Court of the State of Montana.
And the said appellee, by counsel as aforesaid, also moves the Court to affirm the said judgment or decree from which said appeal purports to have been taken, because, although the record in the said cause may show that this Court has jurisdiction in the premises, yet it is manifest that said appeal was taken for delay only.
HENRY E DAVIS,
FORM XXXV.- NOTICE OF SUBMISSION OF MOTIONS TO DISMISS
AND TO AFFIRM.
In the Supreme Court of the United States. October Term, 1891. No. 888. TO MESSRS. MARTIN F. MORRIS AND J. C. ROBINSON,
Counsel for Appellants: Please take notice that on Monday, the fourteenth day of December, A, D. 1891, at the opening of the Court, or as soon thereafter as counsel can be heard, the motions of which the foregoing are copies, will be submitted to the Supreme Court of the United States for the decision of the said Court thereon. Annexed hereto is a copy of the brief of argument to be submitted with the said motions in support thereof.
HENRY E. DAVIS,
FORM XXXVI.- RULE FOR MANDAMUS.
[6 Peters, 774.] Ex parte MARTHA BRADSTREET, IN THE
MATTER OF MARTHA BRADSTREET,
against APOLLOS COOPER et al., Tenants. Mr. Jones, of counsel for the demandant in the above named cases, moved the court for a rule to be granted, to be served on the district judge of the District Court of the United States for the Northern District of New York, commanding him to be and appear before this court, either in person or by an attorney of this court, on the first day of the next January Term of this court, to wit, on the second Monday of January, Anno Domini 1833, to show cause, if any he have, why a mandamus should not be awarded to the said district judge of the Northern District of New York, commanding him,
1. To reinstate, and proceed to try and adjudge according to the law and right of the case, the several writs of right and mises thereon joined, lately pending in said court, and said to have been dismissed by order of said court, between Martha Bradstreet, demandant, and Apollos Cooper et al., tenants.
2. Requiring said court to admit such amendments in the form of pleading, or such evidence as may be necessary to aver or to ascertain the jurisdiction of said court in the several suits aforesaid.
3. Or if sufficient cause shall be shown by the said judge on the return of this rule, or should otherwise appear to this court, against a writ of mandamus requiring the matters and things aforesaid to be done by the said judge, then to show cause why a writ of mandamus should not issue from this court, requiring the said judge to direct and cause full records of the judgments or orders of dismission in the several suits aforesaid, and of the processes of the same, to be duly made up and filed, so as to enable this court to re-examine and decide the grounds and merits of such judgments or orders upon writs of error, such records showing upon the face of each what judgments or final orders dismissing, or otherwise definitely disposing of said suits, were rendered by the said District Court, at whose instance, upon what grounds, and what exceptions or objections were reserved or taken by said demandant, or on her behalf, to the judgments or decisions of the said District Court in the premises, or to the motions whereon such judgments or decisions were found; and what motion or motions, application or applications, were made to said court by the demandant, or on her behalf; and either granted or overruled by said District Court, both before and after said judgments or decisions dismissing or otherwise finally disposing of said suits; especially what motions or applications were made by said demandant or on her behalf to the said District Court, to be admitted to amend her counts in the said suits, or to produce evidence to establish the value of the lands, etc., demanded in such counts, together with all the papers filed, and proceedings had in said suits respectively.
On consideration whereof, it is now here considered and ordered by this court that the rule prayed for be, and the same is hereby granted, returnable to the first day of the next January Term of this court, to wit, on the second Monday of January, in the year of our Lord one thousand eight hundred and thirty-three. Per Mr. Chief Justice MARSHALL
FORM XXXVII.- WRIT OF MANDAMUR.
[7 Peters, 634, 648.] Ex parte BRADSTREET, IN THE MATTER OF
} MARTHA BRADSTREET, Demandant.
Mr. Chief Justice MARSHALL UNITED STATES OF AMERICA, SS. To the Honorable Alfred Concklin, Judge of the District Court of the
United States for the Northern District of New York, GREETING: Whereas, one Martha Bradstreet hath heretofore commenced and prosecuted in your court several certain real actions, or writs of right, in your court lately pending between the said Martha Bradstreet, demandant, and the following named tenants severally and respectively, to wit, Apollos Cooper and others (naming them). And whereas, heretofore, to wit, at a session of the Supreme Court of the United States, held at Washington on the second Monday of January, in the year 1832, it appeared, upon the complaint of the said Martha Bradstreet, among other things, that at a session of your said court, lately before holden by you, according to law, all and singular the said writs of right then and there pending before your said court, upon the several motions of the tenants aforesaid, were dismissed for the reason that there was no averment of the pecuniary value of the lands demanded by the said demandant in the several counts filed and ex. hibited by the said demandant against the several tenants aforesaid; which orders of your said court, so dismissing the said actions, were against the will and consent of said demandant; whereupon the said Supreme Court, at the instance of said demandant, granted a rule requiring you to show cause, if any you had, among other things, why a writ of mandamus from the said Supreme Court should not be awarded and issued to you, commanding you to reinstate and proceed to try and adjudge, according to the law and right of the case, the several writs of right aforesaid, and the mises therein joined. And whereas, at the late session of the said Supreme Court held at Washington on the second Monday of January in the year 1833, you certified and returned to the said Supreme Court, together with the said rule, that after the mises had been joined in the several causes mentioned in the said rule, motions were made therein, on the part of the tenants, that the same should be dismissed upon the ground that the counts respectively contained no allegation of the value of the matter in dispute, and that it did not therefore appear, by the pleadings that the causes were within the jurisdiction of the court: that, in conformity with what appeared to have been the uniform language of the national courts upon the question, and your own views of the law, and in accordance especially with several decisions in the Circuit Court for the third circuit (see 4 Wash. C. C. Rep. 482, 624), you granted their motions; and assuming that the causes were rightly dismissed, it follows of course that you ought not to be required to reinstate them unless leave ought also to be granted to the demandant to amend her counts: and whereas, afterwards, to wit, at the same session of the said Supreme Court last aforesaid, upon consideration of your said return and of the cause shown by you therein against the said rule's being made absolute, and against the awarding and issuing of the said writ of mandamus, and upon consideration of the arguments of counsel, as well on your behalf, showing cause as aforesaid, as on behalf of the said demandant, in support of the said rule, it was considered by the said Supreme Court, that you had certified and returned to the said court an insufficient cause for having dismissed the said actions, and against the awarding and issuing of the said writ of mandamus, pursuant to the rule aforesaid; the said Supreme Court being of the opinion, and having determined and adjudged upon the matter aforesaid, that in cases where the demand is not made for money, and the nature of the action does not require the value of the thing demanded to be stated in the declaration, the practice of the said Supreme Court and of the courts of the United States, is to allow the value to be given in evidence; that in pursuance of this practice, the demandant in the suits dismissed by order of the judge of the District Court had a right to give the value of the property demanded in evidence, either at or before the trial of the cause, and would have a right to give it in evidence in the said Supreme Court; consequently that she cannot be legally prevented from bringing her cases before the said Supreme Court; and it was also then and there considered by the said Supreme Court that the peremptory writ of the United States issue, requiring and commanding you, the said judge of the District Court, to reinstate and proceed to try and adjudge, according to the law and right of the case, the several writs of right and mises therein joined, lately pending in your said court between the said Martha Bradstreet, demandant, and Apollos Cooper and others, the tenants aforesaid; therefore you are hereby commanded and enjoined that immediately after the receipt of this writ, and without delay, you reinstate and proceed to try and adjudge, according to the law and right of the case, the several writs of right and the mises therein joined, lately pending in your said court between the said Martha Bradstreet, demandant, and the said Apollos Cooper and others, the tenants herein above named, so that the complaint be not again made to the said Supreme Court; and that yon certify perfect obedience and due execution of this writ to the said Supreme Court, to be held on the first Monday in August next. Hereof fail not at your peril, and have then there this writ.
Witness the Honorable John Marshall, Chief Justice of said Supreme Court, the second Monday of January, in the year of our Lord one thousand eight hundred and thirty-three. (SEAL]
W. T. CAROL
Prepared by CHARLES C. BURLINGHAM, Esq., of the New York Bar.
FORM I.- LIBEL IN REM.
To the Honorable Charles L. Benedict, Judge of the District Court of the
United States for the Eastern District of New York: The libel of A., B., C., and D. against the steamships X. and Y., their engines, etc., and against all persons claiming any interest therein, in a cause of action, civil and maritime, of a nature hereinafter more specifically set forth, alleges as follows:
First. At all the times hereinafter mentioned the libelants were underwriters, members of Lloyds, and lawfully engaged in and transacting the business of marine insurance in London, England.
Second. On or about the 11th day of June, 18—, the firm of R. & Company, merchants, of the city of New York, shipped, in good order and condition, on board the steamer X., then lying in the port of New York, and bound to the port of H., to be transported in said steamer to said port of H., three hundred and ten tubs of butter, one hundred and forty-five of which were marked “A,” one hundred of which were marked "B," and sixty-five of which were marked “C," and which tubs of butter the agents of said steamer X. did agree to transport to and deliver at H. by the said steamer X. to the order of the shipper, and at the time aforesaid did issue a bill of lading in accordance with such agreement. Said goods were shipped by R. & Company for joint account with F. G. & Company, of H., and were owned by the said R. & Company and the said F. G. & Company jointly, and after said shipment the bill of lading issued as aforesaid there for was duly indorsed by said R. & Company and delivered to said F. G. & Company
Third. On or about the 11th day of June, 18—, the firm of M. & S., merchants, of the city of New York, shipped in good order and condition on board said steamer X., to be transported in said steamer from the port of New York to the port of H., one hundred and two boxes of cheese, thirtynine of which were marked [F]17, twenty-six of which were marked [F]:8, and thirty-seven of which were marked [F].9, and which boxes of cheese the agents of said steamer did agree to transport to and deliver at H. to the order of the shippers, and at the time aforesaid did issue a bill of lading in accordance with such agreement. Said goods were shipped by said M. & S. for account of the firm of F. G. & Company, of H., who were and continued to be the owners of the said goods, and after said shipment said bill of lading issued as aforesaid therefor was duly indorsed by said M. & S. and delivered to said F. G. & Company.
Fourth. On or about the 12th day of June, 18—, the said steamer X. set sail from the port of New York, bound for the port of H., having on board both the aforesaid lots of merchandise, which had been shipped on board said steamer at said port of New York in good order and condition, and at about half-past one o'clock in the afternoon of June 13, 184, the said steamer X., when about three hundred and ten miles east of Sandy Hook, came into violent collision with said steamer Y., and by said collision a large hole was made in the starboard side of the steamer X., by reason whereof the compartments in which the above mentioned lots of merchan. dise were stowed were flooded, and the said lots of merchandise were wholly lost to the owners, most of them being lost through the said hole into the sea and the others being jettisoned.
Fifth. On or about the 29th day of December, 18—, the libelants, in the regular course of their business as marine insurers, issued to D. & W., for and in consideration of the premiums paid, an open policy of insurance in the sum of £5000, British sterling, bearing date on said 29th of Decem