« PreviousContinue »
model for other courts. With some additions, but with little variation, they have been adopted by the several district judges in the courts of the United States, and with some modifications prepared by the learned judge for the southern district of New York, will be found in the appendix, together with the prize rules adopted by that court.
Fourth. In the taking of the examination of witnesses, it is the duty of the commissioners to require each question to be answered, and to write down the answers, or cause them to be written down, fully and perfectly, so as to meet the point of every inquiry, and not allow the witness to evade a searching question by vague or ambiguous statements. In the event of a refusal of a witness either to answer at all, or to answer fully, it is the duty of the commissioners to certify the fact to the court, in which case, not only is the witness subjected to the penalty of imprisonment for contempt, but the owners of the ship and cargo may be subjected- to the consequences of a wilful suppression of evidence.
Fifth. After the examination is complete, it is the duty of the commissioners to read or cause to be read to the witness, each sheet of the same, and require him to sign each sheet separately, and also to aifix thereto their own signatures, or the signature of one of them, if only one be present, or the Commissioners jointly or separately, as they please, and as emergencies may require.
Sixth. When the examination of all the witnesses is concluded, it is the duty of the commissioners securely to enclose the same, and cause it to be sealed with their seals, and, together with any papers and documents found on board the vessel, *
and not before lodged in the registry of the court, to be forthwith transmitted to the court; and no papers or documents found on board, and not delivered to the judge or the commissioners before, or at the time of, the examination, will be admitted in evidence.
These several rales of practice will be found to be recognized and established in many decided cases.1
As soon as the papers, and documents, and preparatory examinations are transmitted to the registry of the court, it is the duty of the captors, without delay, to apply to the court for adjudication; and in case of neglect or refusal on their part, the The libel in c^aimants may do so. This is done by libel. The prize and its prize libel should be general in its allegation, conproper o . ^ajnmg no gpecia;i averments of the circumstances . on which the captors base their alaim to condemnation; but simply setting forth the bringing the vessel in, and the proceedings against her, and alleging generally that she is a subject of prize rights. They are not required to state their grounds. They are entitled to institute the inquiry, and take the chances of the benefit of any fact that the inquiry may elicit.8 This is considered an advantage in favor of the captors, but controlled by their liability for costs and damages, if the inquiry should prove fu- -"' tile; and over-balanced-by the advantage in favofr of the claimant, that all the evidence upon which the ■*
1 The Eliza and Katy, 6 Rob., 185; The Henrick and Maria, 4 Rob., 43; The Speculation, 2 Rob., 243; The William and Mary, 4 Rob., 3S1; The Apollo, 5 Rob., 286; The Viyilantia, 1 Rob., 1 ; Jenninys vs. Carson, 4 Cranch, 2.
1 The Adeline, 9 Crancb, 244; The Fortuna, 1 Dod., 81.
libel must be heard, in the first instance, proceeds from himself, his own documents, his own witnesses, —the captors not being permitted, except in ca*ses marked by peculiar circumstances, to furnish any evidence whatever.
The prize libel is filed by a proctor for the cap- By whom filed, tors. In England, in cases of capture by government ships, the libel is filed and the proceedings conducted by the officers of the government exclusively; for it is there held, that the crown possesses the power to release the prize, against the will and in defeat of the rights of the captors, at any time before adjudication.1 In the United States, although the courts have never been required to pass upon the question, it is not probable that the same exclusive authority would be recognized; for there, after the libel is filed, the power is vested in the court alone, and no release or restitution of the property can be made but by a decree of the court.2 It was suggested by Judge Story, that in such a case, and where the libel was filed by the district attorney, the court would, in the absence of the captors, appoint a proctor to represent their interests.
Upon the filing of the libel, a monition forth- Monition and with issuer, citing all persons interested, to appear narrnnt' at a day named therein (which, in England, is twenty days, but in the United States is fixed at the discretion of the district judge), and show cause why the property should not be condemned as
1 The Elsebe, 5 Rob., 155, 173.
'-' Vide Appendix of Supplementary Rules and General Principles announced by the Unitod States Judge of the District of New Vork.
prize; and in England, as well as in the United States, the monition usually includes a "warrant to take possession of the property. The necessity of such a warrant is apparent, where the property, a3 in England, is in the custody of the captors, until the filing of the libel; but not so apparent, where, as in the United States, it is already in the custody of the court; for it would be a mere transfer from the custody of the commissioners who are officers of the court, to that of the marshal, who is also an officer of the court. But this change of custody, under-a warrant issued with the monition, has been the usual practice in the United States; and when the marshal thus takes possession, he is bound to keep the property in mlva et arcta cmtodia; and if, by his negligence, any loss happens, he is- responsible to the court; for he, like the commissioners, is the mere agent of the court, engaged to make effective its guardianship. Service of mo Tl)e monition is served in England by posting a
nition. .a i • i
copy at the lioyal Exchange, m London; m the United States, by posting a copy on the mast of the prize vessel, and wheresoever the judge may direct, and also by publication in the newspapers of the place or vicinity. Proceedings If, upon the return day of the process, no claim if no claim' is or has been interposed, a default is entered of 1 record, and the court thereupon proceeds to exam
ine the evidence; and if the proof of enemy's prop