Abbildungen der Seite

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 Ware, 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 Zaralla, 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 wale 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. 1 1d.
37. A motion being made by the libellants in

& private suit for the sale of the vessel as
perishing, and it appearing that the veg.
sel was under capture as prize of war,

the motion was denied.
38. The capture as prize overrides and sup.

plants all privato liens, Harian y. 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 dispersed with in a case

where there is no physical means of com-
plying with it on the part of the captors.

41. Where the personal production of the

ship's compary 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 sufficientevidence 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 wax 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
files, 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.

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,

50. The court cannot, in a prize case, notice,

on final hearing, exceptions to proceed-
ings before the prize cominisxioners, 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 mouition,
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 nust
be condemned. The Joseph H. Tuone, 258.


See BLOCKADE, 1, 3, 32, 66, 71, 72.
WAR, 4, 1.




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 canuot 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 proofe, 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 marsbal 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.

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.

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.
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.

ARREST, 1, 2.
CAPTURE, 3, 4, 5.
CONDEMNATION, 26, 140, 141.
Costs, 3 to 6, 8, 14, 15.
ENEMY, 26.
EVIDENCE, 1 to 3, 5, 8 to 15, 17 to 25, 27, 37,


Prize Commissioner.
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 tessel.

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 all.
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 prizo 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

& 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 &
salary of $3,000 a year.

1 Id.
See APPEAL, 2.

Costs, 3 to 6.
EVIDENCE, 9, 32, 33.
PRACTICE, 3, 34 to 36, 50.
SALE, 2.


Prize Master.


Prize Money.

1. The proper practice suggested on refer-

ences to ascertain what vessels are enti.

tled to share in a prize. The Anglia, 506.
2. The right to all prize captures vest* pri-

marily in the goverument; and individ.
uals derive po benefit from them except
by means of positive graut from the pub.
lic authority. Id.

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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. 1d.
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 wo 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
aidiog 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.

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 au 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 froin, 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.

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.

Probable Cause.
1 The fact that a vessel carries clearance

papers issued by the enemy does not
coustitute, of itself, justifiable cause for
her capturs.

The Sarah Starr, 69.


ENEMY, 10.



ENEMY, 15, 16.




ENEMY, 22.
WAR, 1, 5.


See CONDEMNATION, 17, 20, 22, 113.

EVEMY, 12, 22.
WAR, 1 to 4.




See BLOCKADE, 3, 8.
ENEMY, 24.





LIEN, 8.


See PRACTICE, 34 to 36.


See ENEMY, 27 to 29, 32 to 37.


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 Jaden in an enemy
bottom during the war.

The General
Groen, 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

contincable 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 probuble cause for its arrest.

The Velasco, 54.
5. Verrel and cargo restored as neutral prop.

erty, on a lawful voyage, but without
costs against the captory, 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. Vengel and cargo, libelled for having been

fraudulently employed by the master in
unlawfully communicating with the en.

einy, 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,

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 makmg 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.
11. 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 inrther

proofs. The Isabella Thompson, 377.
18. After condemnation of the vessel and cargo,

the decree as to the Tessel 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 galvage, 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 Erening Star, 582.
20. Versel 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. Nerohall, 629.
23. Decree of the district court, condemping

the property, reversed. 52 Bales of Col

ton, 644.
24. The property was captured on a flatboat

fastened to a wharf in Texas, and be-
longed to a citizen and mercbant 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

the breaking out of the war. Id.
25. Vessel and cargo acquitted of a violation

of, or of an attempt to violate, the block-

ade. The Alliance, 646.
26. Vessel held to be neutral property. Id.
27. Verrel and cargo acquitted of violation

of, or of an attempt to violate, the block-

ade. The Gondar, 649.
28. Decree of the district court condemning

vessel and cargo re 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,

30. Decree of the district court, condemning
the cargo, reversed.

The John Gilpin,
31. Decree of the district court, condemring

the vessel and cargo as enemy property,
reversed. The General C. c. Pinckney,

32. The claimant left the enemy port with the

intent to withdraw frem the enemy's
country with his effects, and bad for that
purpose converted his property into the
vessel and cargo, and intended to give
himself up to the blockading squadron.

33. The withdrawal of the property, under

the circumstances, did not subject it to
capture as enemy property.


34. On further proof the vessels and cargoes

were held to be neutral property, and
ordered to be restored to the claimants.

The Gondar, 669.
35. Decree of the district court, condemning

them, reversed. Id.
See BLOCKADE, 11, 55.

CONDEMNATION, 10, 157, 160, 162.
Costs, 15.
LIEN, 2.

Right of Search.


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 &
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.

ENEMY, 10, 11, 17 to 19.
NEUTRAL, 3, 4, 7 to 9.
PRACTICE, 3, 4, 20, 32, 34 to 37, 18.

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1. The vessel and cargo having been ship-

wrecked after seizure, and having been
saved by salvors, the court allowed to
the salvors, as salvage, one-half of the
net proceeds of the salved property, de.
ducting the costs incurred by the United

States in the prize suit. The Maria

Bishop, 552




1. In this case the cargo of tho 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 bad 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 deried 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 Crenshar, 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 tlte 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.

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.

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.


Secretary of the Navy.

See Costs, 12.

Secretary of the Treasury.

See LIEN, 2.



BLOCKADE, 18, 37, 43 to 47, 54, 55, 63.
CAPTURE, 3 to 8.

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