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JAMES N. OLNEY, LIBELLANT AND APPELLANT, v. THE STEAMSHIP FALCON

December 1, 1854

JAMES N. OLNEY, LIBELLANT AND APPELLANT,
v.
THE STEAMSHIP FALCON, HER TACKLE, &C., AND GEORGE LAW AND MARSHALL O. ROBERTS, CLAIMANTS.



THIS was an appeal from the circuit court of the United States for the southern district of New York. A libel was filed in the district court, by Olney, alleging the shipment and non-delivery of a box of merchandise, in consequence of which he was entitled to recover the damages by him sustained, which amounted to the sum of eighteen hundred dollars and upwards. The district court dismissed the libel, and the circuit court affirmed the decree. The libellant appealed to this court.

The opinion of the court was delivered by: Mr. Justice McLEAN delivered the opinion of the court.

Mr. Cutting moved to dismiss the appeal, upon the ground that the amount in controversy appeared, by the record, to be less than two thousand dollars, exclusive of costs.

The motion was argued by Mr. Cutting, in support thereof, and by Mr. Bradley, with whom was Mr. Benedict, in opposition thereto.

The reporter has no notes of Mr. Cutting's argument.

Mr. Bradley filed the following affidavit of value, and then made the following points:––

Affidavit of value.

Charles L. Benedict, of the city of New York, counsellor at law, being sworn, says that he is the proctor for the libellant in this cause.

That the libellant resides out of the city of New York, and deponent has not been able to communicate with him since the notice of the motion to dismiss the appeal in this cause was received. That the amount actually claimed, in good faith, in the original libel in this cause, is one thousand eight hundred dollars, over and above the interest thereafter to accrue, and that, with the interest, the same actually amounted to exclusive of costs, at the time when the appeal in this cause was taken to the decree of the circuit court. And deponent further says, that it is the usual practice, in the southern district of New York, under the 44th rule of this court, in admiralty, to refer questions of damages to a commissioner, to ascertain and compute the amount, after the court shall have given its decree for the plaintiff, so that the full testimony of the amount of damages is not given on the principal hearing.

And deponent further says, that the rules of the district court require libels to be sworn to; so that it is necessary, in stating the amount claimed, to state the same as it actually and in truth exists at the time the libel is sworn to, and on such libels the court, in its final decree, gives such amount as the libellant shall be entitled to recover on his case, whether the same be more or less than the amount in the libel.

CHAS. L. BENEDICT.

Subscribed and sworn to by Charles L. Benedict, this 20th day of December, A. D. 1854, before me,

CHAS. ELIOT SCOVILLE, U. S. Com'r.

Points.

I. It is the matter in dispute in this court, at the time of the appeal, and not the amount in the original libel, ...


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