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stances relied upon to entitle the claimants to share, to which allegations the captors are permitted to file counter-allegations, and the issue thus made, is to be sustained by proofs (the onus being upon the claimants to the rights of joint-captors) taken before the commissioners—being documentary, and the testimony of competent witnesses. ±Vo oral evidence is admitted, nor are ex parte affidavits allowed.1 If, upon the allegations set forth in the claim filed, the court should be clearly satisfied that, ns matter of law, the claim cannot be sustained, it will be rejected in limine, without inquiry into the facts.2 To sustain a claim of jointcapture, proof of the admission of the fact of jointcapture by the capturing ship at the time of capture, is considered conclusive, unless invalidated; and a renunciation of the claim at the time by the asserted joint-captors, is alike conclusive. The evidence of witnesses on board the ship setting up the claim of joint-capture, unless corroborated by evidence aliunde, is never sufficient to sustain the Distributive claim.8 In the case of joint-capture by public proportions, g^jp^ ^e distributive portions are regulated generally by statute provisions.
In the United States, this is done by the act of April 22d, 1800, ch. xxxiii., providing that the capturing ships shall share "according to the number of men and guns on board each ship in sight."
1 The Urania, y Rob., 148; La Virginie, 5 Rob., 124; The Union, 1 Dod., 346; The John, 1 Dod., 363. - The Wuaksamheid, 3 Rob., 1.
3 The Fadrelandet, 5 Rob., 120; La Flore, 5 Rob.. 268: The John, 1 Dod., 363; The San Jose, 6 Rob., 244; The Willirm and Mary, 4 Rob.. 381.
No statute provisions for distribution exist in the case of joint-capture by privateers. By the general rule of the prize law, distribution in such case is to . be in proportion to the relative strength, ascertained by the number of men on board each ship assisting in the capture.1
Upon a decree of condemnation, if no claim of f::lle.?nd. final
. . , . nil! ^ distribution,
joint-capture be interposed, and there be no appeal, when there is the right rests in the captors; and in England, if j°inteapturo the capture be by a private armed vessel, tlje captors aBd noaPPcal are put in possession and permitted to make sale, and return an account into court.- But in the United States, all sales of prize property, whether before or after decree, are made by the marshal, under the provisions of the act of Congress, of January 27th, 1813, chap. civ.
To enable the court to render a final decree of Decree or dis
~ , .. , tribution.
distribution after the sale, it is requisite that the testimony should be taken by the commissioners, bearing upon the questions of superiority or inferiority of force, and of the officers and men entitled to share in their several grades, as shown by the muster-rolls, etc., and report the same to the court.
In the case of capture by public armed ships, the condemnation is always to the government, but the proceeds are distributed pursuant to statute provisions; and this provision, in the United States, is made by the act of April 23d, 1800, chap, xxxiii., and the prize act of Juue 20, 1812, chap, cvii., makes provision for the distribution of the proceeds where
1 Roberts vs. Hartley, Doug., 311; The Dispatch, 2 Gall., 1; Duckworth vs. Tucker, 2 Taunt., 7; The Twee Gesuster, 2 Rob., 28i; Le Frame, 2 Rob., 285.
the capture is made by duly commissioned privateers, lu the appendix will be found the general . provisions as to distribution. Non-commissioned persons are not, as a general rule, entitled to the benefit of prize; but exceptions have been made in favor of cases where great personal gallantry has been exhibited, and prize courts have, in some instances, awarded to such persons the entire proceeds.1
Decree neces- Distribution cannot be made without a decree, butLn? dlSt" and such decree is upon the application of the parties or the mere motion of the court it-elf; but no'one can claim a share, whose claim has not been admitted and supported in the prize court.2 As to the circumstances tinder which a commander is or is not entitled to share, much discussion Las been had; and all the authorities, both in England and the United States, upon this point, are collected in a decision of one of the United States courts, to which reference is made." Head-money. By statute, both in England and the United States (the latter by the act of April 23d, 1800, chap, xxxiii., § 7), in addition to the prize proceeds, a bounty of twenty dollars for each person on board any ship of an enemy at the commencement of an action, which is sunk or destroyed by any ship of
1 The Ilaase, 1 Kob., 280; The Amor Parenium, 1 Rob., 303; The Joseph, 1 Gall., 545.
! Kean vs. Brig Gloucester, 2 Dall., 36; Penhallow vs. Doave. 3 Dall., 54; The Herkimer, Stewart, 128; Bingham vs. Cabot. 3 Dall., 19.
s Decatur vs. Chew, 1 Gall., 506; vide also The Diomede, 1 Acton, 60, 239.
equal or inferior force, is granted for division among the officers and crew as' prize money—and this is called head-money. The act of the Congress of the United States upon this subject, has received no judicial construction; hut under the British act there have been several decisions, to which reference is made.1 .
Where no special statute intervenes, the decree of distribution is executed in the manner and by the persons prescribed by the court, whether cleric, marshal, prize agent, or commissioners, and the power of the court is summarily exercised to compel the accounting for and payment of prize proceeds by all persons in whose hands they have been intrusted or deposited. This may be by a proceeding either in rem or in personam • and the remedy is not limited to any stipulation taken in the cause, but the prize proceeds will be followed wheresoever they have gone, unless they have reached the hands of a bona fide purchaser without notice of the claim.2
As a general principle, the power of a prize court subsists after a general adjudication, to take any proceedings that may be requisite to the final and
1 Several Dutch Schugts, 6 Rob., 48; V Alerte, 6 Rob., 238; The San Joseph, 6 Rob., 331; The Babillion, Edw., 39; La Clornide, 1 Dod., 430; L'Elite, 1 Dod., 442; The Matilda, 1 Dod., 367.
* Willis vs. Commissioner*, 4 T. R. 33; S. G, 5 East, 22; Bingham vs. Cabot, 3 Dall., 19; Hill vs. Ross, 3 Dall., 331; Home vs. Camden, 1 H. Bl., 474; The Louis, 5 Rob., 146; The Pomona, I Dod., 95; The Pol/;/, 5 Hob., 147; The Printz Henrirk Von frussen, 6 Rob., 95; The Mxeter, 1 Rob., 173; The Princessa, 2 Rob., 31.
definitive settlement of every thing respecting the prize.1
By act of Congress, of April, 1849, eh. ciii., § 8, the office of prize agent is abolished. It is understood that the defalcations and malfeasances of sev eral of these officers who were intrusted with the proceeds of the prizes taken by the vessels of the navy in the Gulf of Mexico, during the war between the United States and Mexico induced this provision. The same act provides, that " All prize money from captures made by the vessels of the navy of the United States, received by the marshal, who shall make sale of such prizes, or the net, proceeds thereof after paying • therefrom all charges as provided by law, shall, within sixty days after such sale, be deposited in the treasury of the United States, to be disbursed therefrom as provided by law under the directions of the secretary of the navy."
This statute provision has received no judicial construction. It is apprehended that it was not its purpose to (nor does it in terms) supersede the necessity of a regular decree of distribution by the prize court. Such decree is frequently based upon the determination of the nice and sometimes complicated questions arising under claims of joint-capture, etc., which are the proper subjects for the adjudication of prize courts, and it could not have been intended to clothe the department of the navy with any of the functions of a judicial tribunal.
It was the obvious design of the law to avoid in
1 The cases last cited.