affidavits: but if the point be too nice and doubtful to be determined on mere motion, the court will direct the party to declare in prohibition, that is, to profecute an action, by filing a declaration on a fuppofition (which is not traversable), that his opponent has proceeded in the court below, notwithstanding a writ of prohibition.

CHAPTER X.

ON THE PRACTICE OF THE PRIZE COURT,

IT is the duty of the commanders of all ships (and this duty is particularly enjoined in the inftructions given to the commanders of fhips commiffioned) when a prize is by them taken in war, to bring the thips, veffels, and goods fo taken, into fuch port, in fome part of his majefty's dominions as fhall be moft convenient, in order to have the fame legally adjudged in the high court of admiralty of England, or before the judge of fome other admiralty court, lawfully authorized, within his majesty's dominions, according to the place into which the prize may be brought, and if they omit to proceed to adjudication of fuch their prizes, or unreasonably delay, any perfons claiming property in the fhips or goods by their proctor, or the king's proctor, or proctor of the admiralty for the king's intereft, as the cafe may be, may obtain monitions to be decreed against the captors, citing them to proceed to adjudica, tion, which if they will not do, the fhip will be adjudged to the perfons or parties proving an intereft.

The prize being brought into port, the next duty of the captors, or their commander, is, as foon as poffibly may be, to bring and deliver into the judge of that court of admiralty, to whose jurifdiction the matter appertains, or his furrogate, all papers, paffes, fea-briefs, charter-parties, bills of lading, cockets, letters, and other documents and writings which fhall have been found on board the prize, which are to be numbered; and their number specified in an affidavit to be made by the taker, or one of his chief officers, or fome perfon prefent at the time of the capture, and of the papers being found and delivered up (1); in which affidavit it must be fworn that the faid papers, &c. are brought in as they were taken, without fraud; or if any are wanting, they must be accounted for, and at the fame time the captor fhould fend before the judge, or his lawful commiffioners, fome principal perfons of the fhip's company, to be examined upon the ftanding interrogatories.

These standing interrogatories (a copy of which is to be met with in every admiralty office) are interrogatories which have been drawn up in general terms with great care and accuracy, for the purpose of difcovering the truth concerning the intereft and property in fhips and their cargoes.

(1) This duty is enforced not only in private inftructions, but by the act of the 22d Geo. II. on pain of the commander of the capturing ship forfeiting his share of the prize.

In the inean time the fhip and cargo are to be carefully kept and preferved, and no fale thereof, and no waste or fpoliation to be admitted, nor bulk to be broken, before judgment; and in the plantations abroad they are to be under the care of the collector and comptroller of the cuftoms, or where there is no comptroller, of the naval officer.

The fhip's papers being introduced, with the ufual affidavit, the judge, at the petition of the captor's proctor, decrees the ufual monition againft all perfons in general having, or pretending to have, an intereft, &c. &c. The examinations of the witneffes to the ftanding interrogatories, or in prepatorio are taken by the judge, or fuch perfon or perfons as are by him appointed for that purpose.

This examination must be finished within five days, and the monition iffued and executed in the ufual manner, within three days after request made in that behalf to the judge or other perfon thereto authorized.

If within the space of twenty days after the execution of the monition (2), no perfon appears to difpute the legality of the prize, or if within that time a claimant appears, but doth not within five days from the time of entering faid claim give fecurity to pay double cofts in cafe the veffel be

(2) So I understand the act. It is oddly worded; the words are, if no claim be entered, giving twenty days no

tice of the monition.

adjudged lawful prize; the fhip or veffel muft immediately, or with all convenient speed, be condemned, or acquitted and difcharged, upon the evidence of the fhip's papers, if fuch there are, or of those found on board any other fhip regarding the capture, and of the examinations in preparatorio.

If within twenty days a claimant appears, and gives in his claim in regular form, and within five days from the time (3) of entering the claim, gives fufficient fecurity to pay double cofts in cafe his claim be defeated, and upon the examination in preparatorio, and fhips papers being produced, there appears no occafion to go into any further examination; the judge is, within ten days, if poffible, to proceed to fentence.

But if the court be not. satisfied from the ship's papers, and the examination on the standing interrogatories, and ftill have doubts whether the capture be lawful prize or not, and it fhall appear neceffary to the judge to have an examination of witneffes on pleadings given in by the parties, and admitted by the judge, and fuch examination be defired and the capture still difputed, he orders fuch examination accordingly, under the well-known phrafe of further proof, the parties put in their pleadings, and the cause proceeds upon plea and proof, though

(3) This was omitted in the old prize acts, so that it did not appear from whence the five days were computed.