28. It is irregular to subjoin to the claim any- thing besides a test oath. Id.
29. Such irregularities will be corrected on motion without formal exceptions. Id. 30. The rules of practice in admiralty are the basis of the practice in prize in our na- tional courts. The Wave, 148. 31. The papers found on board the captured vessel, and the testimony of the witnesses in preparatorio, can alone be considered on the hearing, in the first instance, in the determination of the issue. The Cheshire, 151.
32. After a decision condemning the vessel and cargo, but before the entry of the decree, the libellants moved for an immediate sale of vessel and cargo, as being in a perishing condition. The court held, on the facts, that no necessity was shown for such sale. The Cheshire, 165. 33. The court, during the present war, always regards, by force of the standing prize rules, a decree by default, regularly ob tained, as equivalent to an admission on the record of the offence charged in the libel. The Zavalla, 173.
34. Motion founded on the report of the prize commissioner for an order to sell the car- go, pending the hearing, denied, the pro- posed sale being earnestly opposed by the claimants, and there being a strong preponderance in the number of witnesses against the necessity of the sale, and the report not being founded on the personal inspection and judgment of the commis- sioner. The Alliance, 186.
35. On a motion for the sale of a cargo pend- ing the hearing, on the ground that it is in a perishing condition, the judgment of the prize commissioners, founded on their inspection, as evidenced by their report, will prevail, unless controlling evidence is produced counteracting their judgment. The Nassau, 198.
36. A sale ordered in this case. 37. A motion being made by the libellants in a private suit for the sale of the vessel as perishing, and it appearing that the ves sel was under capture as prize of war, the motion was denied.
38. The capture as prize overrides and sup- plants all private liens. Harlan v. The Nassau, 199.
39. The rule of the prize law is, that the mas- ter and some of the crew of a prize ves- sel must be brought in to be examined as witnesses to the facts attending the seizure. The Actor, 200.
40. The rule will be dispensed with in a case where there is no physical means of com- plying with it on the part of the captors. Id.
41. Where the personal production of the ship's company is satisfactorily excused,
the court will suspend proceedings in the cause, or admit secondary evidence. Id. 42. In this case none of the ship's company being produced as witnesses, and there not being sufficient evidence to condemn the vessel under the practice of the Eng- lish prize court, the court allowed the libellants time, not exceeding a year and a day from the institution of the suit, to produce proof that the vessel was arrested in fact and was lawful prize of war, and that the more direct testimony usually produced to that end was not le- gally at command of the libellants. Id.
43. This vessel having been sent in to the court as a prize, the court, on the appli- cation of the district attorney before libel filed, and before any appearance by any claimant, and without notice to any claimant, made an order appointing ap praisers to value the prize, with the view to her being taken for the use of the gov ernment. After the libel was filed, the claimant appeared in the suit, and moved to vacate the order because it was made without notice to him. Held, that the motion could not be granted. The Mem- phis, 202.
44. The fact that the order appointing apprais- ers was signed by the judge when out of this district is no objection to its validity. Id.
45. 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 Ella Warley. 204.
46. The court prefers this method to that of taking bail, and regards a sworn appraisal as a more satisfactory mode of ascertain- ing the value of prize property than an auction sale. Id.
47. The authority of the court to appraise prop- erty captured as prize, and to transfer it to the use of the government before condemnation, at its appraised value, maintained. The Ella Warley, 207. 48. Motion by the libellants for the sale of the vessel, because she is in a perishing con- dition, granted. The Ella Warley, 213. 49. Redress for wrongs committed by the cap. tors, or for want of diligence in proceed. ing to the trial of the case, cannot be had by way of defence in the prize suit. It must be sought for by proper pleadings and further proof. The Joseph H. Toone, 223.
50. The court cannot, in a prize case, notice, on final hearing, exceptions to proceed- ings before the prize commissioners, be- cause of alleged irregularities in the ad- mission of testimony, or in the method of conducting the examinations, or to the competency of the witnesses examined. Relief in respect to such matters must be sought by a special motion, on notice to the district attorney, pointing out the irregularities complained of. The Ezilda,
51. In this case the court had condemned the cargo, but had withheld condemnation of the vessel, on the ground that no moni- tion had been returned against her. Af- terwards, the court, on the application of the libellants, made an order, under the 44th admiralty rule of the Supreme Court, no notice by monition having been given to the owner of the vessel, and she not being in port, that the monition be served on the proctor for the owner. It having been so served, the proctor appeared in court and made, under oath, an excep- tion in writing on behalf of the owner against the requirements of the monition, the district attorney at the same time moving for a decree of condemnation against the vessel for want of an answer to the libel. Held, that the proceedings were regular, and that the vessel must be condemned. The Joseph H. Toone, 258.
52. This court, as a prize court, has no power to open a decree after the expiration of the term or session in which it was ren- dered. The Lizzie Weston, 265.
53. If the vessel and cargo are subject to con- demnation, the claimants cannot contest in a prize court the competency of the libellants alone to control the proceeds of the forfeiture. The Gondar, 266. 54. Collateral subjects can be controverted in prize cases only by means of pleadings and further proofs, specially authorized by the court after a decision on the first issue. The Napoleon, 296.
55. After the lapse of the term in which a de- cree is rendered in a prize case, the au. thority of the court to revoke or alter it is extinct. The Major Barbour, 310. 56. An order was made by the court in this case that the marshal open the packages of cargo found on board of this vessel, covered by two of the bills of lading found on board, and take an inventory of their contents, their contents not being specified in any papers found on the vessel. The Springbok, 349.
57. A claimant in a prize suit can, under the
rules of the court, cause the suit to be disposed of, if the libellants are guilty of any wrongful delay in its prosecution. Id.
58. The right of a belligerent to visit and search a neutral vessel in time of war implies a power in the prize court of the belligerent to which a captured neutral vessel is sent for adjudication, to order, under reasonable precautions and for- bearance, an examination of the cargo sufficient to ascertain its character, and then to employ evidence so acquired, as further proof to establish the culpability of the voyage. Id.
59. In this case the cargo of the prize vessel, consisting wholly of articles contraband of war, was unladen and inventoried and appraised, and reported to the court, be- fore the hearing. The Stephen Hart, 387. 60. Nearly all of the cargo was delivered to the government, for its use, at the ap- praised value. Id.
61. The fact that the test oath to the claim in this case is made not by the claimants but by their proctor, and the peculiar language of the proctor's affidavit, com- mented on. The Springbok, 434.
See APPEAL.
APPRAISER. ARREST, 1, 2.
See BLOCKADE, 1, 3, 32, 66, 71, 72. WAR, 4, 1.
See PRIZE MONEY, 4. RESTORATION, 18.
1. The question of the costs taxable to the prize commissioners considered. The Merrimac, 585.
2. The act of March 25, 1862, (12 U. S. Stat. at Large, 374,) discussed as to the com- pensation provided by it for the prize commissioners. Id.
3. The tariff of allowances to the prize com- missioners, prescribed by the court un- der that act, explained. Id.
4. The act of July 17, 1862, (12 U. S. Stat. at Large, 608.) restricting the compensation of each prize commissioner to $3,000 per year, discussed. Id.
5. The difficulty of carrying out the statutory provisions as to the compensation of the prize commissioners set forth. Id.
6. A prize commissioner cannot have taxed to him custody fees in respect of a vessel. Id.
7. Custody fees to a prize commissioner in respect of a cargo, are a personal allow. ance to him for an individual trust exe- cuted by him. No third person is au- thorized to assume such custody, and a charge by a prize commissioner of such fees, where his possession of the cargo was merely constructive, and not per- sonal, will not be allowed. Id.
8. The court refused to allow to a prize com- missioner a charge of one per cent. on the proceeds of a vessel and cargo, as cus- tody fees, for holding them in possession less than thirty days, and until they came into the custody of the marshal, on a warrant of arrest. Id.
9. A charge by the prize commissioner, in his bill of costs, of one per cent. custody fee on the proceeds of the vessel and cargo, disallowed. The Hattie, 595.
10. The act of July 17, 1862, (12 U. S. Stat. at Large, 608, sec. 12,) forbids the allow- ance to a prize commissioner in this dis- trict of any larger emolument than a salary of $3,000 a year. Id.
See APPEAL, 2.
APPRAISER, 3.
COSTS, 3 to 6.
EVIDENCE, 9, 32, 33.
PRACTICE, 3, 34 to 36, 50. SALE, 2.
CONDEMNATION, 26, 140, 141.
COSTS, 3 to 6, 8, 14, 15.
DAMAGES, 1.
ENEMY, 26.
EVIDENCE, 1 to 3, 5, 8 to 15, 17 to 25, 27, 37,
FREIGHT, 2.
FURTHER PROOF.
JURISDICTION, 1 to 3.
MAIL.
MASTER, 1.
PLEADING.
PRIZE MONEY, 1, 13. SALE. VESSEL, 2.
1. The proper practice suggested on refer- ences to ascertain what vessels are enti- tled to share in a prize. The Anglia, 566. 2. The right to all prize captures vests pri- marily in the government; and individ- uals derive no benefit from them except by means of positive grant from the pub- lic authority. Id.
3. Every vessel of a blockading squadron is bound to do all in its power in the ser- vice to be performed, and the law pre- sumes that that obligation is fulfilled un- less the contrary be proved. Id.
4. The rule is different with respect to joint associations or enterprises for war pur- poses by privateers or cruisers owned by individuals. Id.
5. The doctrine of reasonable or equitable reward has no place in an inquiry as to the distribution of prize money to na- tional vessels under the statutes on that subject. Id.
6. The single fact that a vessel is one of a common force does not constitute her a participant in the prize shares obtained by the separate members of the force. Id. 7. It must also be shown that the vessel was "in sight," or "within signal distance,' of the occurrence out of which the taking of the prize was realized. Id.
8. She must have been so situated as to be able, of her own accord, to contribute direct assistance to the captors by deter- ring the enemy from resistance, or by aiding physically in overcoming such re- sistance; and the vessel to be aided must have possessed the means of communi- cating intelligent directions to the one whose aid was needed. Id.
9. The acts of Congress on the subject con- template that the vessels should be in view of each other in order to correctly receive and respond to the signals given. Id.
10. Under those acts, a vessel, in order to be entitled to share in the proceeds of prize property, must show that she was within signal distance of the vessel making the prize, in circumstances which might have justified the capturing vessel in demand. ing and expecting her assistance. Id. 11. The proceeds of property captured as prize of war belong exclusively to the govern ment, and can be distributed or allotted only according to direct and positive au- thority of law. The Merrimac, 584. 12. Under the acts of March 25, 1862. and July 17, 1862, (12 U. S. Stat. at Large, 375, sec. 4, and 607, sec. 6.) an armed mer- chant vessel, not in the service of, and having no commission from, the United States, although she is present at the capture of a prize and co-operates there- in, is not entitled to share in the proceeds. Id.
13. It appearing that the prize property was captured by a United States steam trans- port ship, no other vessel co-operating therein, or being within signal distance at the time, and that the prize vessel was of inferior force, the court, to carry into effect the act of June 30, 1864, al- lowing vessels not of the navy to share in a prize in certain cases, referred it to a commissioner to report the names and employments of the captors on board the transport ship present and engaged in the capture, and the relative compensa- tions properly allowable to them seve rally. The Emma, 607.
1 The fact that a vessel carries clearance papers issued by the enemy does not constitute, of itself, justifiable cause for her capture. The Sarah Starr, 69.
RESTORATION, 1, 2, 4, 5, 8, 11, 14, 16, 17, 20, 21.
See APPEAL, 2. APPRAISER. BAIL, 2 to 4. CAPTURE, 11. COSTS, 8, 12, 13. FREIGHT, 2.
PRACTICE, 3, 4, 20, 53. PRIZE COMMISSIONER, 8, 9.
Proclamation.
See BLOCKADE, 3, 32, 64, 66, 71, 72. Proctor.
See PRACTICE, 51, 61.
See BLOCKADE, 38. CONDEMNATION, 52, 100. ENEMY, 15, 16 to 19. NEUTRAL, 7 to 9.
See CONDEMNATION, 52. ENEMY, 10.
See CONDEMNATION, 52. ENEMY, 15, 16.
R. Ratification.
See CONFISCATION, 1. CONDEMNATION, 17, 125. ENEMY, 22. WAR, 1, 5.
See CONDEMNATION, 17, 20, 22, 113. CONFISCATION, 1. ENEMY, 12, 22. WAR, 1 to 4.
See PRIZE MONEY, 1. Register.
See BLOCKADE, 3, 8. ENEMY, 24.
See CONDEMNATION, 166. FURTHER PROOF, 6 to 8.
1. Vessel released as not being enemy prop erty, and restored on payment of costs, there having been reasonable cause for her seizure. The Hannah M. Johnson, 2. 2. Cargo restored, but without costs or dam- ages, there being probable cause for the capture, it being laden in an enemy bottom during the war. The General Green, 2.
3. Cargo restored, being neutral property, and there having been no attempt to violate the blockade; but no costs or damages awarded, as the vessel was confiscable in part. The Forest King, 2. 4. Cargo, being neutral property, on trans- portation in a lawful trade, released, without costs to the captors, there having been no probable cause for its arrest. The Velasco, 54.
5. Vessel and cargo restored as neutral prop- erty, on a lawful voyage, but without costs against the captors, there having been probable cause for the arrest, the vessel having attempted to enter a block- aded port to obtain necessary supplies. The Argonaut, 62.
6. An excuse of that kind is looked upon with distrust by prize courts. Id.
7. Vessel and cargo, libelled for having been fraudulently employed by the master in unlawfully communicating with the en- emy, released. The Tropic Wind, 64. 8. The seizure having been made on probable grounds of suspicion, the vessel and cargo were restored without costs or damages against the captors. Id.
9. Part of vessel acquitted. The Mary McRae, 91.
10. Vessel having been used by the enemy without the knowledge of her owners, and recaptured from the enemy, restored, by consent, with costs to the libellants. The Henry C. Brooks, 99.
11. There was probable cause for the seizure, but the vessel was neutral property on a lawful voyage, and was making for a blockaded port for repairs. The Jane Campbell, 101.
12. Vessel and cargo restored without costs. Id. 13. The further proof introduced by the libel- lants, on leave, to show an intent to violate the blockade, held not to estab- lish such intent. The Jane Campbell, 130. 14. Vessel and cargo restored. The question of costs and damages reserved. The Labuan, 165.
15. Vessel discharged for want of legal arrest and prosecution. The Wave, 329.
16. Vessel and cargo discharged from seizure and restored to the claimant, with costs and damages, because of a wrongful arrest. The Glen, 375.
17. Vessel and cargo released from seizure and restored to the claimants, without dam- ages or costs, with permission to the libel- lants to move for leave to give further proofs. The Isabella Thompson, 377. 18. After condemnation of the vessel and cargo, the decree as to the vessel was opened, by consent, on the application of loyal owners of the vessel, who showed that she had been previously captured from them by a privateer of the enemy. The court ordered the vessel to be restored to such owners on payment of one-eighth of her value, as salvage, to the captors. The Hattie, 579.
19. The vessel and cargo were owned by un- naturalized foreigners, residing in the enemy's country, who came in her out of a blockaded port of the enemy, with the sole purpose of escaping with their property from the enemy, and delivering that and themselves to the blockading squadron and to the authority of the United States. The Evening Star, 582. 20. Vessel and cargo restored, but without costs, there being probable cause for the seizure and the suit. Id.
21. Vessel and cargo acquitted, with costs, there having been no probable cause for their seizure. The Sybil, 615.
22. Vessel and cargo released and restored to the claimants. The Sarah M. Newhall, 629. 23. Decree of the district court, condemning the property, reversed. 52 Bales of Cot- ton, 644.
24. The property was captured on a flatboat fastened to a wharf in Texas, and be- longed to a citizen and merchant of New York, who went to Texas before the war to collect debts due to him. The cotton was the proceeds, and the claimant used all diligence to collect his effects, with a view to leave the hostile country after Id. the breaking out of the war. 25. Vessel and cargo acquitted of a violation of, or of an attempt to violate, the block- The Alliance, 646.
26. Vessel held to be neutral property. Id. 27. Vessel and cargo acquitted of a violation of, or of an attempt to violate, the block- ade. The Gondar, 649.
28. Decree of the district court condemning vessel and cargo reversed, they not being enemy property, and there having been no violation of, or attempt to violate, the blockade. The Mersey, 658.
29. Decree of the district court, condemning vessel and cargo for an attempt to violate the blockade, reversed. The Empress,
1. In this case the cargo of the prize vessel, consisting of tobacco, was suffering dam- age from exposure to the weather and from confinement in the hold of the ves- sel, and the price of the article had in- creased since the capture. The cargo having been condemned in the district court, the claimants, after appealing to the circuit court, applied to that court for the delivery of the cargo to them on the usual stipulation. The court denied this application, but appointed commission- ers to appraise the cargo, and ordered it to be sold and the proceeds to be brought into court. The Crenshaw, 631.
2. In this case, after an affirmance by the cir cuit court of the decree of the district court condemning the vessel and cargo, and the taking of an appeal to the Su- preme Court by the claimants, the circuit court, on the application of the prize commissioners, and on proof that the cargo, consisting of tobacco, was in a perishing condition, ordered it to be sold. The Hiawatha, 632.
3. The provisions of the act of March 25, 1862, (12 U. S. Stat. at Large, 374,) in regard to the sale of prize property, pendente lite, commented on. Id.
4. That act applies to proceedings in the cir- cuit court as well as in the district court. Id.
5. The practice under that act prescribed and regulated. Id.
6. In this case the prize property was con demned in the district court, and a sale of it was ordered. The claimant ap- pealed to the circuit court from the de- cree of condemnation, and then applied to that court to stay the sale, which was in progress, on the ground that the ap- peal operated to remove the cause into the circuit court, and thereby deprived the district court of jurisdiction to issue an execution, or to make a sale of the property under the decree of condemna- tion in that court. The circuit court or- dered the sale to be stayed, and all pro- ceedings under the decree below to be set aside. The Sunbeam, 638.
7. The 12th section of the act of July 17, 1862, (12 U. S. Stat. at Large, 608,) and the 4th section of the act of March 25, 1862, (Id., 375,) considered. Id.
8. There is nothing in either of these acts which changes the general rules of prac tice that no sale can take place under a decree of condemnation in the district court, duly appealed from; that a decree thus appealed from is not a final decree; and that, after the appeal, the cause, with the res, is in the circuit court, and subject to its jurisdiction alone. Id.
9. The 1st section of the act of March 3, 1863, (12 U. S. Stat. at Large, 759.) respecting sales of prize property condemned, not- withstanding an appeal, relates solely to decrees of condemnation to be thereafter made. Id.
1. The belligerent right of search may be made effective by an examination of the lading, as well as the papers, of a vessel. The Springbok, 349.
2. The refusal by the master of a neutral merchant vessel to permit the papers of his vessel to be taken on board of a bel- ligerent cruiser when demanded, to be there examined by the commander of the cruiser, especially after those papers have been already so far examined on board of the merchant vessel, by a subordinate officer from the cruiser, as to excite sus- picion concerning their regularity, is, on the part of the neutral master, a resist- ance to the right of visitation and search, even though he offers his papers for ex- amination on board of his own vessel, and his vessel for search. The Peterhoff, 463. See CAPTURE, 6.
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