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Further proof usually consists of affidavits made by the asserted proprietors of the goods, in which they are sometimes joined by their clerks and others acquainted with the transaction and with the real property of the goods claimed. In corroboration of these affidavits may be annexed original correspondence, duplicates of bills of lading, invoices, extracts from books, etc. These papers must be proved by the affidavits of persons who can speak to their authenticity. And if copies or extracts, they should be collated and certified by public notaries. The affidavits are sworn before the magistrates or others competent to administer oaths in the country where they are made, and authenticated by a certificate from the British consul.
The degree of proof to be required depends upon the degree of suspicion and doubt that belongs to the case In cases of heavy suspicion and great importance, the court may order what is called "plea and proof,” that is, instead of admitting affidavits and documents introduced by the claimants only, each party is at liberty to allege in regular pleadings such circumstances as may tend to acquit or to condemn the capture, and to examine witnesses in support of the allegations, to whom the adverse party may administer interrogatories. The depositions of the witnesses are taken in writing; if the witnesses are to be examined abroad, a commission issues for that purpose; but in no case is it necessary for them to come to England. These solemn proceedings are not often resorted to.
Standing commissions may be sent to America for the general purpose of receiving exam. inations of witnesses in all cases where the court may find it necessary for the purposes of justice, to decree an inquiry to be conducted in that manner.
With respect to captures and condemnations at Martinico, which are the subjects of another inquiry contained in your note, we can only answer in general, that we are not informed of the particulars of such captures and condemnations, but, as we know of no legal court of admiralty established at Martinico, we are clearly of opinion that the legality of any prizes taken there, must be tried in the high court of the admiralty of England, upon clairs given, in the manner above described, by such persons as may think themselves aggrieved by the said captures. We have the honor to be, etc.,
JOHN NICHOLL. COMMONS, September 10th, 1794.
THE PRIZE RULES OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK.
Rule 1.—There shall be issued, under the seal and authority of this court, commissions to such persons as the court shall think fit, appointing them severally commissioners to take examinations of witnesses in prize causes in preparalorio, on the standing interrogatories, which have been settled and adopted by this court, and all other depositions which they are empowered to require, and to discharge such other duties in relation to ships, or vessels, or property brought into this district, as prize, as shall be designated by the said commissioners, and the rules and orders of this court.
RULE 2.—The captors of any property brought into this district as prize, or some one on their behalf, shall, without delay, give notice to the district judge, or to one of the commissioners aforesaid, of the arrival of the property, and of the place where the same may be found.
RULE 3.-Upon the receipt of notice thereof from the captors, or district judge, a commissioner shall repair to the place where the said prize property then is; and if the same be a ship, or vessel, or if the property be on board a ship or vessel, he shall cause the said ship or vessel to be safely moored in sufficient depth of water, or in soft ground.
RULE 4.-The commissioner shall, in case the prize be a ship or vessel, examino whether bulk has been broken; and if it be found that bulk has been broken, one of the said commissioners shall take information upon what occasion, or for what cause, the same was done. If the property captured be not a ship or vessel, or in a ship or vessel, he shall examine the chests, packages, boxes, or casks, containing the subject captured, and shall ascertain whether the same has been opened, and shall, in every case, examine whether any of the property originally captured has been secreted or taken away subsequently to tho capture.
RULE 5.--The commissioner in no case shall leave the captured property until he secure the same by seals upon the hatches, doors, chests, bales, boxes, casks, or packages, as the case may require, so that they cannot be opened without breaking the said seals; and the said seals shall not be broken, or the property removed, without the special order of the court, excepting in case of fire and tempest, or of absolute necessity.
RULE 6.-If the captured property be not a vessel, or on board a vessel, the commissioner shall take a detailed account of the particulars thereof, and shall cause the same to be deposited, under the seals as aforesaid, in a place of safety, there to abide the order or decree of this court.
Rule 7.-If no notification shall, within reasonable time, be given by the captors, or by any person in their behalf, of any property which may be brought as prize within this district, and the commissioners, or either of them, shall become informed thereof by any means, it shall be the duty of the said commissioners, or one of them, to repair to the place where such property is, and to proceed in respect to the same as if notice had been given by the captors.
RULE 8.-The captor shall deliver to the judge-at the time of such notice, or to the commissioner or commissioners, when he or they shall, conformably to the foregoing rule, repair to the place where such captured property is, or at such other time as the said commissioners, or either of them, shall require tho same-all such papers, passes, sea-briefs, charters, bills of lading, cockets, letters, and other documents and writings, as shall have been found on board the captured ship; or which have any referenco to, or connection with the captured property, and which are in the possession, custody, or power of the captors.
RULE 9.-The said papers, documents and writing3, shall be regularly marked and numbered by a commissioner, and the captor, chief officer, or some other person who was present at the taking of the prize, and saw that such documents, papers and writings, were fo:ind with the prize, must make a deposition before one of the said commissioners, that they have delivered up the same to the judge or commissioner as they were found or received, without any fraud, subduction, or embezzlement. If any documents, papers or writings, relative to, or connected with the captured property, are missing or wanting, the deponent shall, in his said deposition, account for the same, according to the best of his knowledge, information and belief,
RULE 10.--The deponent must further swear, that if, at any time thereafter, and before the final condemnation or acquittal of the said property, any further or other papers relating to the said captured property shall be found or discovered, to the knowledge of the deponent, they shall also be delivered up, or information thereof given to the commissioners or to this court, which deposition shall be reduced to writing by the commissioner, and shall be transmitted to the clerk of the court, as hereinafter mentioned.
RULE 11.-When the said documents, papers and writings, are delivered to a commissioner, he shall retain the same till after the examination in preparatorio shall have been made hy him, as is hereafter provided, and then be shall transmit the same with the same affidavit in relation thereto, the preparatory examinations, and the information he may have received in regard to the said captured property, under cover and under his seal, to this court, addressed to the clerk thereof, and expressing on the said cover to what captured property the documents relate, or who claim to be the captors thereof, or from whom he received the information of the capture; which said cover shall not be opened without the order of the court.
RULE 12.-Within three days after the captured property shall have been brought within the jurisdiction of this court, the captor shall produce to one of the commissioners three or four, if so many there be, of the company or persons who were captured with, or who claim the said captured property; and in case the capture be a vessel, the master and mate, or supercargo, if brought in, must always be two, in order that they may be examined by the commissioner in preparatorio upon the standing interrogatories.
RULE 13.—In the examination of witnesses in preparatorio, the commissioner shall use no other interrogatories but the standing interrogatories, unless special interrogatories are directed by the court. He shall write down the answer of every witness separately to each interrogatory, and not to several interrogatories together; and the parties may personally, or by their agents, attend the examination of witnesses before the commissioners; but they shall have no right to interfere with the examination by putting questions or objecting to questions; nor to take notes of the proceedings before the commissioner, to be used other. wise than before the court. All ohjections to the regularity or legality of the proceedings of the commissioners must be made to the court.
Rule 14.-- 11 hen a witness declares he cannot answer to any interrogatory, the commissioner shall admonish the witness that by virtue of his oath, taken to speak the truth, and nothing but the truth, he must answer to the best of his knowledge, or when he does not know absolutely. then to answer to the best of his belief concerning any one fact.
RULE 15.—The witnesses are to be examined separately, and not in presence of each other, and they may be kept from all communication with the parties, their agents or counsel, during the examination. The commissioners will see that every question is understood by the witness, and will take their exact, clear, and explicit answers thereto; and if any witness refuses answer at all, or to answer fully, the examining commissioner is forth with to certify the facts to the court.
RULE 16.—The captors must produce all their witnesses in succession, and cannot, after the commissioners have transmitted the examination of a part of the crew to the judge, be allowed to have others examined without the special order of the court; and the exam. ination of every witness shall be begun, continued, and finished in the same day, and not at different times. Copies of the standing interrogatories shall not be returned by the commissioner with the examinations, but it shall be sufficient for the answer of the witnesses to refer to the standing interrogatories by corresponding numbers.
Rule 17.—Before any witness shall be examined on the standing interrogatories, the commissioner shall administer to him an oath in the following form : " You shall true answer make to all such questions as shall be asked of you on these interrogatories, and therein you shall speak the whole truth, and nothing but the truth, so help you God.” If the witness iş conscientiously averse to swearing, an affirmation to the same effect shall be administered to him.
RULE 18.--Whenever the ship's company, or any part thereof, of a captured vessel, are foreigners, or speak only a foreign language, the commissioner taking the examination may summon before him competent interpreters, and put to them an oath, well and truly to in. terpret to the witness tho oath administered to him, and the interrogations propounded, and well and truly to interpret to the commissioners the answers given by the witness to the respective interrogatories.
RULE 19.—The examination of each witness on the standing interrogatories shall be returned according to the following form: * Deposition of A B, a witness produced, sworn and examined in preparatorio, on the day of
on the standing interrogatories established by the district court of the United States for the southern district of New-York; the said witness having been produced for the purpose of such examination by C D, in behalf of the captors of a certain ship or vessel called the
(or of certain goods, wares, and merchandise, as the case may be.) "Ist. To the first interrogatory the deponent answers, that he was born at
&c. "20. To the second interrogatory the deponent answers, that he was present at the time of the taking, &c."
RULE 20.—When the interrogatories have all been answered by a witness, he shall sign his deposition, and the commissioner shall put a certificate thereto in the usual form, and subscribe his name to the same.
RULE 21. -No person having or claiming any interest in the captured property, or having any interest in any ship having letters of marque or commissions of war, shall act as a commissioner. Nor shall a commissioner act either as proctor, advocate, or counsel, either for captors or claimants, in any prize cause whatever.
RULE 22.-If the captain or prize-master neglect or refuse to give up and deliver to the commissioners the documents, papers, and writings relating to the captured property. according to these rules, or refuse or neglect to produce, or cause to be produced, witnesses to be examined in preparatorio, within threo days after the arrival of the captured property within the jurisdiction of this court, or shall otherwise unnecessarily delay the production of
in the year
the said documents, papers, or writings, the comnissioners, or one of them nearest to the place where the captured property may be, or before whom the examination in preparatorio may have been already begun, shall give notice in writing to the delinquent, to forth with produce the said documents, papers, and writings, and to bring forward his witnesses; and if he shall neglect or delay so to do for the period of twenty-four hours thereafter, such com. missioner shall certify the same to this court, that such proceedings may thereupon be had 38 justice may require.
RULE 23.-If within twenty-four hours after the arrival within this district of any captured vessel, or of any property taken as prize, the captors, or their agents, shall not give notice to the judge or a commissioner, pursuant to the provisions herein made, or shall not, two days after such notice given, produce witnesses to be examined in preparatorio, then any person claiming the captured property and restoration thereof, may give notice to the judge or the commissioners as aforesaid, of the arrival of the said captured property; and thereupon such proceedings may be had by the commissioners in respect to the said property, and relative to the documents, papers, and writings connected with the said capture, which the claimant may have in his possession, custody, or power, and relative to the examination of witnesses in preparatorio, as near as may be, as is before provided for in cases where the captors shall give notice and examine in preparatorio. And the said claimant may in such cases file his libel for restitution, and proceed thereon according to the rules and practice of this court.
RÜLE 24.--As soon as may be convenient, after the captured property shall have been brought within the jurisdiction of this court, a libel may be filed, and a monition shall there. upon be issued, and such proceedings shall be had as are usual in conformity to the practice of this court, in cases of vessels, goods, wares, and merchandise seized as forfeited, in virtue of any revenue law of the United States.
RULE 25.—In all cases, by consent of captor and claimant, or upon attestation exhibited upon the part of the claimant only, without consent of the captor, that the cargo or part thereof is perishing or perishable, the claimant specifying the quantity and quality of the cargo, may have the same delivered him, on giving bail to answer the value thereof if condemned, and further to abide the event of the suit; such bail to be approved of by the captor, or otherwise the persons who give security swearing themselves to be severally and truly worth the sum for which they give security. If the parties cannot agree upon the value of the cargo, a decree or commission of appraisement may issue from the court to ascertain the value.
RULE 26.—In cases where there is no claim, an affidavit being exhibited on the part of the captor of such perishing or perishable cargo, specifying the quantity and quality thereof, the captor may have a decree or commission of appraisement and sale of such cargo, the proceeds thereof to be brought into court, to abide the further orders of the court.
RULE 27.- The name of each cause shall be entered by the clerk upon the docket for hearing in their order, according to the dates of the returns of the monitions, and lists of the causes ready for hearing are to be constantly hung up in the clerk's office, for public inspec. tion.
RULE 28.-In all cases where a decree or commission of appraisement and sale of any ship and cargo, or either of them, shall have issued, no question respecting the adjudication of such ship and goods, or either of them, as to freight or expenses, shall be heard till the said decree or commission shall be returned, with the account of sales, and the proceeds according to such account of sales, be paid into court, to abide the order of the court in respect thereto.
RULE 29.- After the examination, taken in preparatorio on the standing interrogatories, is brought into the clerk's office, and the monition has issued, no further or other examinations upon the said interrogatories shall be taken, or affidavits received, without the special directions of the judge, upon due notice given.
RULE 30.-None but the captors can, in the first instance, invoke papers from one captured vessel to another, nor can it be done without the special mandate of the judge; and, in case of its allowance, only extracts from the papers are to be used.
Rule 31.—The invocation shall only be allowed on affidavit on the part of the captors, satisfying the court that such papers are material and necessary.
RULE 32.- Application for permission to invoke must be on service, at least two days previously, of notice thereof, and copy of the affidavit on the claimants, or their agent (if
known to be in this port); and after invocation allowed to the captors, the claimants, by permission of the judge, for sufficient cause shown, may use other extracts of the same papers in explanation of the parts invoked.
RULE 33.--But when the same claimants intervene for different vessels, or for goo wares, or merchandise captured on board different vessels, and proofs are taken in the respective causes, and the causes are on the dockets for trial at the same time, the captors may, on the hearing in court, invoke, of course, in either of such causes, the proofs taken in any other of them; the claimants, after such invocation, having liberty to avail themselves also of the proofs in the cause invoked.
RULE 34.-In all motions for commissions, and decrees of appraisement and sale, the time shall be specified within which it is prayed that the commissions or decrees shall be made returnable.
RULE 35.- The commissioners shall make regular returns on the days in which their commission or decrees are returnable, stating the progress that has been made in the exocution of the conmission or decrees, and, if necessary, praying an enlargement of the time for the completion of the business.
Rule 36. — The commissions shall bring in the proceeds which have been collected at the time of their returns; and they may be required from time to time to make partial returns of such sums only as are necessary to cover expenses.
RULE 37.-On the returns of commissions or decrees, the commissioners or the marshal must bring in all the vouchers within their control.
RULE 38.—All moneys brought into court in prize causes shall be forthwith paid into such bank, in the city of New York, as shall be appointed for keeping the moneys of the court, and shall only be drawn out on the specific orders of the court, in favor of the persons respectively having right thereto, or their agents or representatives, duly authorized to receive the same.
RULE 39.-- At every stated term of the court, the clerk shall exhibit to the court a statement of all moneys paid into court in prize cases, designating the amount paid in each particular case, and at what time.
RULE 40.--The statement, when approved by the court, shall be filed of record in the clerk's office, and be open to the inspection of all parties interested, and certified copies thereof shall be furnished by the clerk, on request, to any party in interest, his proctor or advocate.
Rule 41.-When property seized as prize of war is delivered upon bail, a stipulation, according to the course of the admiralty, is to be taken for double its value.
RULE 42.-Every claim interposed must be by the parties in interest, if within convenient distance-or in their absence, by their agent or the principal officer of the captured shipand must be accompanied by a test affidavit, stating brietiy the facts respecting the claim, and its verity, and how the deponent stands connected with or acquired knowledge of it. The same party who may intervene is also competent to attest to the atidavit.
RULE 43.--The captors of property brought in or held as prize, or which may have been carried into a foreign port, and there delivered upon bail by the captors, shall forthwith libel the same in fact, and sue out the proper process. The first process may, at the election of the party, be a warrant for the arrest of the property or person, to compel a stipulation to abide the decree of the court, or a monition.
RULE 44.- The monitions shall be made returnable in ten days, and if the property seized as prize is in port, shall be served in the same way as in the case of monitions issued on the instance side of the court of admiralty on seizure for forfeiture under the revenue laws. In case the property claimed as prize is not in port, then the monition is to be served on the parties in interest, their agent or proctor, is known to reside in the district, otherwise by publication daily in one of the newspapers of this city, for ten successive days preceding the return thereof.
RCLE 45.—Thenever the jurisdiction of the court is invoked upon matters as incident to prize, except as to the distribution of prize money, there must be distinct articles or allecations in that behalf in the original libel or claim on the part of the party seeking relief. But in case the matters have arisen or become known to the party subsequent to presenting his libel or claim, the court will allow him to file the necessary amendments.
RULE 46.- No permission will be granted to either party to introduce further proofs unti after the hearing of the cause upon the proofs originally taken.