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model for other courts. With some additions, but with little variation, they have been adopted by the several district judges in the courts of the United States, and with some modifications prepared by the learned judge for the southern district of New York, will be found in the appendix, together with the prize rules adopted by that court.
Fourth. In the taking of the examination of witnesses, it is the duty of the commissioners to require each question to be answered, and to write down the answers, or cause them to be written down, fully and perfectly, so as to meet the point of every inquiry, and not allow the witness to evade a searching question by vague or ambiguous statements. In the event of a refusal of a witness either to answer at all, or to answer fully, it is the duty of the commissioners to certify the fact to the court, in which case, not only is the witness subjected to the penalty of imprisonment for contempt, but the owners of the ship and cargo may be subjected to the consequences of a wilful suppression of evidence.
Fifth. After the examination is complete, it is the duty of the commissioners to read or cause to be read to the witness, each sheet of the same, and require him to sign each sheet separately, and also to affix thereto their own signatures, or the signa ture of one of them, if only one be present, or the Commissioners jointly or separately, as they please, and as emergencies may require.
Sixth. When the examination of all the witnesses is concluded, it is the duty of the commissioners securely to enclose the same, and cause it to be sealed with their seals, and, together with any papers and documents found on board the vessel,
The libel in
and not before lodged in the registry of the court, to be forthwith transmitted to the court; and no papers or documents found on board, and not delivered to the judge or the commissioners before, or at the time of, the examination, will be admitted in evidence.
These several rules of practice will be found to be recognized and established in many decided cases.1
As soon as the papers, and documents, and preparatory examinations are transmitted to the regis try of the court, it is the duty of the captors, without delay, to apply to the court for adjudication; and in case of neglect or refusal on their part, the claimants may do so. This is done by libel. The prize and its prize libel should be general in its allegation, containing no special averments of the circumstances on which the captors base their claim to condemnation; but simply setting forth the bringing the vessel in, and the proceedings against her, and alleging generally that she is a subject of prize rights. They are not required to state their grounds. They are entitled to institute the inquiry, and take the chances of the benefit of any fact that the inquiry may elicit. This is considered an advantage in favor of the captors, but controlled by their liability for costs and damages, if the inquiry should prove futile; and over-balanced by the advantage in favor of the claimant, that all the evidence upon which the
The Eliza and Katy, 6 Rob., 185; The Henrick and Maria, 4 Rob., 43; The Speculation, 2 Rob., 243; The William ond Mary, 4 Rob., 381; The Apollo, 5 Rob., 286; The Vigilantia, 1 Rob., 1; Jennings vs. Carson, 4 Cranch, 2.
The Adeline, 9 Cranch, 244; The Fortuna, 1 Dod., 81.
libel must be heard, in the first instance, proceeds from himself, his own documents, his own witnesses, -the captors not being permitted, except in cases marked by peculiar circumstances, to furnish any evidence whatever.
The prize libel is filed by a proctor for the cap- By whom filed. tors. In England, in cases of capture by government ships, the libel is filed and the proceedings conducted by the officers of the government exclusively; for it is there held, that the crown possesses the power to release the prize, against the will and in defeat of the rights of the captors, at any time before adjudication. In the United States, although the courts have never been required to pass upon the question, it is not probable that the same exclusive authority would be recognized; for there, after the libel is filed, the power is vested in the court alone, and no release or restitution of the property can be made but by a decree of the court. It was suggested by Judge Story, that in such a case, and where the libel was filed by the district attorney, the court would, in the absence of the captors, appoint a proctor to represent their interests.
Upon the filing of the libel, a monition forth- Monition and with issues, citing all persons interested, to appear at a day named therein (which, in England, is twenty days, but in the United States is fixed at the discretion of the district judge), and show cause why the property should not be condemned as
The Elsebe, 5 Rob., 155, 173.
Vide Appendix of Supplementary Rules and General Principles announced by the United States Judge of the District of New York.
prize; and in England, as well as in the United States, the monition usually includes a warrant to take possession of the property. The necessity of such a warrant is apparent, where the property, as in England, is in the custody of the captors, until the filing of the libel; but not so apparent, where, as in the United States, it is already in the custody of the court; for it would be a mere transfer from the custody of the commissioners who are officers of the court, to that of the marshal, who is also an officer of the court. But this change of custody, under a warrant issued with the monition, has been the usual practice in the United States; and when the marshal thus takes possession, he is bound to keep the property in salva et arcta custodia; and if, by his negligence, any loss happens, he is responsible to the court; for he, like the commissioners, is the mere agent of the court, engaged to make effective its guardianship.
Service of mo- The monition is served in England by posting a copy at the Royal Exchange, in London; in the United States, by posting a copy on the mast of the prize vessel, and wheresoever the judge may lirect, and also by publication in the newspapers of the place or vicinity.
on return day
If, upon the return day of the process, no claim if no claim is or has been interposed, a default is entered of record, and the court thereupon proceeds to examine the evidence; and if the proof of enemy's property-or of lawful prize for any sufficient cause, if it be not enemy's property be clearly establishedwill immediately decree condemnation. If, upon the evidence, the case appear at all doubtful, a decision will be postponed.
It has been customary, by the modern practice, not to condemn merchandise in default of claim, till a year and a day have elapsed after the service of process, except where the presumption is strong of enemy's property, upon reasonable evidence.1
If, however, a claim be interposed, the cause is to The claim. be heard in its proper order, upon the ship's papers and the preparatory examinations. This brings us to a consideration of the claim made, in opposition to the alleged rights of the captors, and the rules by which it is governed.
The claim must be made by the parties interested, By whom if present, and if not, by the master of the vessel, or by some agent of the owners of the property. It must be made by the general owner of the property; one who has a lien upon it for the payment of a debt, liquidated or not, is not entitled to claim, nor is a mortgagee where the morgagor remains in possession. A mere stranger is not permitted to interpose a claim, to speculate on the chances of restitution.2
It is a general principle, well established, that no one can be allowed to claim in a prize court, where the transaction in which he is engaged is in violation of the municipal laws of his own country.3
'The Harrison, 1 Wheat., 298; The Staadt Embden, 1 Rob., 26; The Avery, 2 Gall., 308.
*The Betsy, 1 Rob., 98; The Mentor, 1 Rob., 181; The Huldah, 3 Rob., 239; The George, 3 Rob., 129; The William, 4 Rob., 215; The Susanna, 6 Rob., 48; The Tobago, 5 Rob., 218; The Frances, 8 Cranch, 235, 413; The Marianna, 6 Rob., 24; Bolch vs. Darrel, Bee., 74.
The Walsingham Packet, 2 Rob., 77; The Etrusco, 4 Rob. 262; The Cornelius and Maria, 5 Rob., 23; The Abbey, ib., 251; The Recovery, 6 Rob., 341.