The Ella Warley. Accordingly, an order for the appraisal of captured property, and the surrender or transfer of it to governmental uses, under precautionary provisions to secure individual interests vesting in it, is palpably a judicial power, to be performed at the instance of the government, and need not, if indeed it can, be superseded or dispensed with by a direct and summary act of appropriation of the property by the executive authority. It is not intended, in the decision of this case, to go beyond the facts directly involved in it. I accordingly hold that the order asked for by the district attorney was correctly granted by the judge, on the assent, on the part of the libellants, to his authority to make it before any party was known to have intervened in the suit; and that, no objections being established against the competency of the appraisers, or the justness of their valuation of the property seized, the order be now adopted and confirmed by the court, in all its terms, and be executed. accordingly. This decision does not proceed upon the assumption that the judge, when out of his territorial district, can, of his own option, perform functions strictly judicial. The act of appointing appraisers ex parte would be performed by an order of course, entered in the book of orders within the district, and the signature of the judge given thereto in a neighboring district does no more than authenticate the ministerial act of the officers of the court, or permit them to perform it apud acta. I think, therefore, that this objection, as made, does not invalidate the signature, as given, or the force of the order. Order accordingly. THE STEAMER ELLA WARLEY AND CARGO. The practice of this court is settled, that where the captors desire to take to their own use the property captured as prize, its value is to be ascertained by sworn appraisal, and deposited in court, or in the treasury, subject to the order of the court. The court prefers this method to that of taking bail, and regards a sworn appraisal as a more satisfactory mode of ascertaining the value of prize property than an auction sale. (Before BETTS, J., August, 1862.) BETTS, J.: This case embraces the exceptions raised in the last case to the authority of the court to order an appraisal of prize property, and its transfer to the libellants. The decision of that point is, accordingly, controlled by the previous case of The Memphis. The Ella Warley. A further question is made and discussed, relating to the powers of the court to act upon the final disposal of the property otherwise than by means of a judgment of forfeiture, and a sale thereof by execution. It is insisted that the claimants are entitled to have the value of the property tested and ascertained by the form of a judicial and public sale. The prerogative right of the captors to take the property seized to their own use is modified only in subserviency to the modern law of war, that, in case a judicial confiscation of it is not secured, the captors are responsible over for its value to the lawful proprietor. That responsibility may be secured to the claimant by bail, in court, for its worth, or other equivalent protection to such contingent right. The usage of this court is, to place the value, in deposit in the registry of the court, or in the United States treasury, subject to the authority of the court, to be restored and paid to the claimant in case of the acquittal of the property, in place of relying upon individual undertakings or responsibilities therefor. The court is not convinced of the greater propriety or certainty of resorting to an auction sale of property as a means of ascertaining its reasonable value, particularly when both parties stand in court alike asserting a legal ownership to it. That method may approach nearer to the worth of an article which · possesses no steady mercantile value, and is subject to sudden fluctuations, under speculative excitements or emergencies. The condition of a state of peace or war must naturally affect the salable value of arms and munitions of war, in general trade or local transactions, producing, at times, sudden alterations in the demand and supply. We have witnessed such changes in the progress of the present war; but, the fitful state of the market at any of these periods would measure but imperfectly the worth of the commodity, as an article of trade and merchandise. Particularly, the salableness at auction may readily, by dishonest collusions, be augmented or depressed, so as to take from such a sale all just evidence of the transaction being one between vendor and purchaser, calculated to determine the value of the article between them. It appears to me that, in such a condition of things, the general judgment would confide in the honest valuation of discreet individuals, well acquainted with the subject, rather than in the result of palpitating excitement at a public sale, in fixing the price which should be paid to the claimant, provided the government should be proved not to be the lawful owner of the property. There is high authority in support of the expediency of an auction sale to effect that end, (The Euphrates, 1 Gall., 451; The Diana, 2 Costs, Fees, and Compensation in Prize Cases. Id., 93;) and this preference, it is understood, is concurred in by the practice of the prize court in Pennsylvania. But all the decisions must rest on the same principle-that it is competent to the government, through the agency of the courts, to take immediate possession and use of captured property, on guaranteeing, by bail or deposit, at its worth, the restoration of its value to its lawful claimants. It is, therefore, a question of expediency, addressed to the sound discretion of the court, whether that value shall be ascertained by auction sale, or by the appraisal of individual appraisers. In many instances, as where the prize cannot be brought into port, or the public necessities compel its instant appropriation or arrest, an appraisal affords the only method of fixing its value. That course has been repeatedly adopted by this court during the war, and I perceive no reasons for directing a public sale to that end, when an appraisal is feasible. The method, therefore, of guaranteeing the interests of the claimants, through the pledge, by deposit, of a sum fixed by a sworn appraisal, I regard as superior to one by bail or collateral security only, and to be preferred to an auction sale, as a criterion of the worth of the property taken. The order prayed for by the district attorney is, therefore, granted. COSTS, FEES, AND COMPENSATION IN PRIZE CASES. (August, 1862.) BETTS, J.: Bills of costs are laid before me for taxation in behalf of the district attorney, the mar shal, the prize commissioners, and the counsel for captors, made up in prize suits which have been adjudicated in the court. The following principles of allowance will be applied in the taxation of costs in prize cases: 1. No specific tariff of fees having been appointed to the suits by statute, the costs fixed by statute for similar services in admiralty will be allowed in this court, except as otherwise directed by acts posterior to the fee-bill of February 26, 1833. 2. The compensation directed to be made by the act of March 25, 1862, to the officers therein named, will be computed and adjusted, as nearly as may be, conformably to allowances by the laws of the United States to employés for like services under the government, or in accordance with established rules and usages of the courts in regard to their officers rendering like services. In cases of doubt or difficulty, evidence may be taken on the question of quantum meruit. 3. The gross costs taxed to any of the officers of court for services in prize suits will be, in collection or payment, subject to all limitations, as to amounts or periods of payment, under the acts of Congress in force at the time of such taxation. 4. The method of ascertaining the compensation of any of the officers of court for their services in prize suits, by a percentage on the value of the property coming officially into their possession or under their charge, will not be adopted by the court without express authority of law, or the assent thereto, in writing, by the parties whose interests are to be affected thereby. The Ella Warley. THE STEAMER ELLA WARLEY AND CARGO. The authority of the court to appraise property captured as prize, and to transfer it to the use of the government before condemnation, at its appraised value, maintained. (Before BETTS, J., September 4, 1862.) BETTS, J.: In this case an order for the appraisal of the cargo of arms had been given in behalf of the United States, but the appraisal made by the appraisers having been withdrawn, the United States attorney gave notice to the proctor for the claimants that he would move for the appointment of new appraisers. The objections taken by the counsel for the claimants to the authority of the court to appraise the property seized, and to transfer it to the United States at the appraised value, were renewed on this motion; and the position was restated that the property could only be properly disposed of by the court by public auction. By strict law, enemy property captured by a belligerent in time of war becomes the property of the capturing power, and may be appropropriated by it to its own use. (Wheaton's International Law, ch. 2, § 5.) But, in relation to property captured as prize, there has been universally and immemorially recognized by the maritime law of nations, an established method of determining, through the agency of courts of justice created by the capturing power, whether the capture be or be not lawful prize. (Chitty's Law of Nations, ch. 3.) The courts of the United States adopt the law of nations in its modern state of purity. (Ware v. Hylton, 3 Dall., 199, 281.) The prize law is administered in the United States conformably to principles, recognized in the English jurisprudence at the time of the adoption of the Constitution. (Jennings v. Carson, 4 Cranch, 23, 24, note; Brown v. The United States, 8 Cranch, per Story, J., 137, 139.) The practice in the United States courts under the confederation, and in the tribunals of most maritime nations, is of similar purport and effect. (5 Wheat., App., 52; Brown v. The United States, 8 Cranch, 130, 131, per Story, J.) In England, the prize vests in the lord high admiral, and not in the Crown. (2 Brown's Civ. and Adm. Law, 56.) In the United States, it becomes the property of the government. (The Dos Hermanos, 10 Wheat., 306.) But in each country there are special regulations, under the prize acts, qualifying the public interest in prizes, and regulating the distribution of their proceeds. Both parties are substantially actors in prize suits, both demanding from the court the thing in contest, (Jennings v. Carson, 4 Cranch, 2,) The Ella Warley. and each has power, after an issue, to carry out the procedure to final judgment. Yet the captors are effectively the parties coming before the court, primarily, as owners and possessors of the property. They demand a judgment, confirming the incipient right acquired by seizure, and rendering it an absolute ownership at law. The decree would thus become one of transfer and conveyance to the captors, of the property arrested, by confiscation; but, with a view to ulterior rights in the value seized, it being partible among the captors, the property is not assigned, by judgment, to the captors in kind, but, under the rules of procedure in this court, is converted into money, and the money is distributed in aliquot shares. Judge Story, in his summary of the law of prize, seems to have given to the decision in The Copenhagen, (3 Ch. Rob., 178,) an operation beyond the range of that case. The case only related to the legal rights of a claimant, and had no reference to those of the captors, (1 Wheat., App., 502, note;) and in two decisions rendered by the circuit court of the United States in Massachusetts, (The Ship Argo, 1 Gall., 150; The Diana, 2 Gall., 93,) the denial of the right to bail captured property was made only as against the claimants, and the ruling was based upon the case of The Copenhagen, which was supposed to be so limited by Sir William Scott. The privileges or restrictions as to captors are not mentioned in that case, and it appears that both by the English and American practice, a delivery of prize property by sale and bail is permitted in cases of reasonable necessity. (The Falcon, 6 Ch. Rob., 194; The Arabella, 2 Gall., 372; 2 Wheat., App., 51 to 53) It is not material to this proceeding which interpretation of the rule of bailing prevails, only so far as it touches the rights of parties prosecuting as lawful possessors and owners of property under arrest. No decision questions the competency of a prize court to bail or sell prize property before condemnation, which is in a perishing or perishable state, reserving the proceeds to be adjudicated to the true owner. Such power is just as absolute as that of a direct appropriation of it by the captors, subject to like conditions, and it must necessarily result that it is to be executed by the court under advisement, according to its judgment of the most expedient method of performing the duty. In numerous cases which have already occurred, and been heretofore acted upon by this court, property captured in the Gulf of Mexico, and otherwise distant from this port, has been adjudged to the use of the United States, on report of the naval commander making the capture, and of a sworn appraisement of its value; and in those in |