« PreviousContinue »
the Supreme Court of the United States, that requires all such evidence abroad to be taken under a commission issued out of the court.
Such commissions, however, by a general rule of prize courts are never issued to be executed in the country of the enemy.
Upon the return of the farther proof allowed, if any such be taken, the cause is again heard in its order, upon the original and supplemental proof, and not again opened.
In the exercise of the duties of prize courts as Judicial orders the guardians of the public interest, they are fre. pendente lite. quently required to take some action with reference to the prize property, during the progress of the proceedings—such as the unlivery of the cargo, or its appraisal and sale, or the sale of the vessel.
The unlivery of the cargo often becomes necessary Unlivery of to ascertain its nature and quality, or to preserve
it from injury or pillage, or because the ship stands in a position relative to the claim, altogether distinct from the cargo. In these cases, and others in which it may seem alike proper, the court, on application, will order an unlivery of the cargo.?
Upon an order of unlivery of cargo, the court In what mandirects a commission to issue to the marshal or any competent person, to unlade the cargo, and to make a true and perfect inventory thereof; and at the
The London Packet, 2 Wheat., 371; The Magnus, 1 Rob., 31; The Diana, 2 Gall., 93.
: The Liverpool Packet, 1 Gall., 513; The Carl Walter, 4 Rob., 207; The Richmond, 5 Rob., 325; The Jonge Margaretha, 1 Rob., 189; The Oster Risoer, 4 Rob., 199; The Hoffnung, 6 Rob., 231; The Prosper, Edw., 62.
same time a commission is directed to some competent persons, who are required, upon oath, to appraise the cargo according to its true value; and where the object is to ascertain the nature and quality of the cargo, these persons are required to return an inventory thereof, with a certificate of the particulars, names, descriptions, and assortments of goods, with their marks and numbers, and the nature, use, quantities, and qualities thereof.
The court may also, in the exercise of its genship or cargo, or both. eral guardianship, order a removal of ship or cargo
or both, to another place or port; and in such case, a commission of removal is issued, directed either to the marshal, or to such other person as the court
may appoint. Expense of un- The expenses incident to the unlivery of the livery or
cargo, or the removal of ship and cargo, being for whom borne. the benefit of all parties, are usually borne by
the prevailing party. If the captors apply for the unlivery, and the property is condemned, they bear the expense; but if restitution be decreed, the expense is generally made a charge upon the cargo-but this is always in the discretion of the court.:
Order of sale
After the unlivery and appraisement, the court erty, and now sometimes orders a sale of the property, whether
ship or cargo, and this is done where they are in in a perishing condition, or liable to deterioration pending the process.
Marriott's Forms, 224. ? Marriott's Forms, 234; The Rendsberg, 6 Rob., 142; The Sacra Familia, 5 Rob., 360.
3 The Industrie, 5 Rob., 88.
This is done by a commission of appraisement and sale, issued to such competent persons as the court may appoint, directing them to choose appraisers, to appraise the same on oath, and there. afterward to expose the same to public sale, and bring the proceeds into the registry of the court. By the practice in the courts of the United States, a sale is sometimes ordered without a previous appraisement, but when appraised, the appraisers are always appointed by the court. In England, it is the practice of the court to allow the claimants to select one of the commissioners of appraisement and sale.?
The expense of this proceeding is, in the first in- Expense of stance, borne by the party applying for it, and ulti-Siele, by whom mately as the court may decree. In the United States, the sale itself is in all cases made by the marshal, and such is usually the case in England, but the court may direct it to be made by any
The regular practice of the prize court is to have a previous inventory and appraisement; and obvious reasons of public policy to check fraud and fix responsibility on the officers of the court, require an adherence to that rule.
The court, in the exercise of its discretionary Delivery of the power, after a hearing in the first instance, orders bail to the capa delivery of the property on bail, either to cap-ants.
tors or claim.
· The St. Lawrence, 1 Gall., 467 ; The Frances, 1 Gall., 451; Jennings vs. Curson, 4 Cranch, 2; Stoddart vs. Read, 2 Dall., 40; The Copenhagen, 3 Rob., 178; Marriott's Forms, 237, 318.
? The Carl Walter, 4 Rob., 207, 211; The Rendsbery, 6 Rob., 142.
tors or to the claimants, according to the circumstances as they are developed. We have seen in what cases the court will allow an application for such «lelivery to be made to the claimants, and in what cases to the captors.
The bail required in such cases, is a stipulation for the return of the property, or its full value, to abide the decree; and ordinarily, the court insti. tutes an inquiry into the value, and the order is made pursuant thereto. The sureties in such stipulation are responsible only for the amount of their stipulation; but the principal is holden for the value of the property, though it exceed the sum named in the stipulation. The delivery is usually made on bail, at an appraised value; in which case, both principal and sureties are bound in that sum and no farther.
But their liability cannot be reduced on an application to diminish it to the sum which the property actually produced at a subsequent sale.?
The expenses incident to a delivery on bail, are borne by the delivering party, unless the court otherwise direct, but usually the direction is, that the party who applies for the delivery on bail shall bear the expenses; and all subsequent expenses after its delivery are borne by the party receiving
the property. Stipulations Stipulations to answer adjudication, given in a and liability prize court, are not regarded as mere personal secu
rities for the benefit of the parties, as such bonds
"The Alligator, 1 Gall., 145.
are viewed in the common law courts. They are considered securities given to the court itselfpledges or substitutes for the thing, in all points fairly in adjudication before the court. They are not discharged by lapse of time, but may be enforced by the court at any time, and although the stipulation be given to the captors, the bail may
be answerable in the admiralty to the government, if it should so result, from any circumstances, that the property is condemned to the government. But if, at the time of the capture and delivery on bail, the property was neutral, and by reason of the subsequent intervention of hostilities with the neutral power condemnation is made to the government, the stipulation would not in such case be enforced, because such an event was not in the contemplation of the parties when they entered into it. This is the English doctrine, but, although not passed upon by the courts of the United States, Judge Story seems to doubt its correctness: "For,” says he, “the bail bond being a substitute for the property itself, there does not seem any very conclusive reason why it should not be subject to all the events which would have affected the property, if still in the custody of the court.”
On an appeal, the property follows the appeal Appeal from into the appellate court. In the United States, when an appeal is made to its effect on
the possession the Circuit from the District Court, the property or control of
the prize prop goes into the Circuit Court, and is no longer subject
erty. to the interlocutory orders of the District Court. It is not so, however, on an appeal from the Circuit Court to the Supreme Court of the United States,