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of the property, and he is bound to keep it in salvâ et arctâ custodiâ; and if any loss happen by his negligence he is responsible for it to the court. In England, it formerly actually remained in the custody of the court, and does so now in contemplation of law, although the Admiralty, merely for convenience, allow the captors to retain the possession in England, but as the agents of the court, and not in the right of property. And the court still retains its custody, notwithstanding an unlivery and deposit in public warehouses.1

§ 22. As has already been remarked, it is the duty of the captors to send their prize into a convenient part of their own country, and to immediately bring the case before the proper court for adjudication. If they fail to do this, the claimant may apply to the court for a monition to the captors to proceed forthwith for adjudication, and if they neglect to do so after service and return of such monition, the court will, if a proper case be laid before it, proceed to award not only restitution, but also damages and costs. Even if the captors agree to a restitution, if they have unreasonably delayed to make it, demurrage will be allowed against them. The libel filed by the captors is usually in very general terms, setting forth the facts of the capture, and alleging the captured property to be a subject of prize rights; but the captors are not required at the commencement of the suit to allege the particular grounds

1 Smart v. Wolff, 3 Durn. & East., 323, 329; the Herkimer,' Stewart R., 128; the 'Rendsberg,' 6 Rob., 142; the Concord,' 9 Cranch. R., 387 ; theNereide,' I Wheat. R., 171; the Hoop,' 4 Rob., 145.

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Application for a sale of prize property, before hearing, on the ground that it was in a perishing condition, granted, under the circumstances of the case.-Stoddart v. Read, 2 Dall., 40; the 'Pioneer,' Blatchf. Pr. Cas., 61.

On a motion, for the sale of a cargo pending 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,' Blatchf. Pr. Cas., 198.

The application for the sale of prize property, in a perishing condition, was refused in the case of the 'Alliance,' Blatchf. Pr. Cas., 186; compare Harlan v. the 'Nassau, Ibid., 220.

A sale of prize property was allowed before a hearing, under the circumstances of the case, of the 'Sarah and Caroline,' Blatchf. Pr. Cas., 123; and of the 'Nymph,' Ibid., 564.

A libel, in a prize case, need contain no further averment than that the property seized is prize of war.-The 'Sally Magee,' Blatch. Pr. Cas., 382.

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When a sale will be ordered, pending an appeal, see the 'Crenshaw, Blatchf. Pr. Cas., 631; the Hiawatha,' Ibid., 632; the 'Sunbeam,* Ibid., 638.

upon which they base their claim to a condemnation. But the court may, in its discretion, afterwards order special pleadings. In case of joint captures, the libel is filed by the actual seizors, and those claiming the benefit of joint capture afterwards file their claim, giving bonds to the required amount for costs. On the filing of the libel, the usual practice is to issue a monition, citing all persons who are interested to appear by a given day, and show cause why the specified property should not be condemned as prize, etc.1

1 The 'Betsey,' 1 Rob., 93; the 'Mentor,' 1 Rob., 181; the 'Huldah,' 3 Rob., 239; the 'Der Mohr,' 3 Rob., 129; the 'George,' 3 Rob., 212; the 'William,' 4 Rob., 215; the 'Susanna,' 6 Rob., 48; the 'Adeline,' 9 Cranch., 244; the 'Fortuna,' 1 Dod. R., 81; the 'Conqueror, 2 Rob., 303. Goods are usually condemned, for want of a claim, after a year and a day have elapsed from the date of the return of the monition."

During the Crimean war, this time was reduced to three months by the 17 & 18 Vict. c. xviii., s. 37, liberty being reserved to the Judicial Committee, to allow the appeal to be prosecuted after the expiration of that period. But the motion by a claimant, the owner of a cargo, upon notice to the captor for leave to appeal from a sentence of the Admiralty Court in England, pronounced in pœnam contumacia, fifteen months after the capture, was granted subject to the presentment of a petition of leave to appeal, on payment of costs, and on the terms of prosecuting the appeal within three months, bail being given for payment of the captor's costs. The proceedings in England were unknown to the owner of the cargo, and the sentence of condemnation not having been communicated by the captors to the owner, he had no knowledge thereof, until long after the time for appealing had expired.—The ‘Aspasia,' 11 Moore P. C. C., 80. See also the Achilles,' 11, Ibid., 86.

It is enacted by the 27 & 28 Vict. cap. xxv., s. 36, that before condemnation, a petition on behalf of asserted joint captors shall not, except by special leave of the court, be admitted, unless and until they give security, to the satisfaction of the court, to contribute to the actual captors a just proportion of any costs, charges, expenses, or damages that may be incurred by, or awarded against, the actual captors on account of the capture and detention of the prize. After condemnation, such a petition shall not, except by special leave of the court, be admitted, unless and until the asserted joint captors pay to the actual captors a just proportion of the costs, charges, and expenses incurred by the actual captors in the case, and give such security as aforesaid, and show sufficient cause to the court why their petition was not presented before condemnation.

A British prize-court, on proof of any offence against the law of nations or against the Act below mentioned, or any Act relating to naval discipline, or against any Order in Council or Royal Proclamation, or of any breach of her Majesty's instructions relating to prize; or of any Act of disobedience to the orders of the Lords of the Admiralty, or to the command of a superior officer, committed by the captors in relation to any ship or goods taken as prize, or in relation to any person on board such ship, may on condemnation reserve the prize to her Majesty's disposal, notwithstanding any grant that may have been made by her Majesty in favour of captors.-27 & 28 Vict. cap. xxv., s. 37.

The practice in American prize-courts is, in general, to make final condemnation of enemy's property at the hearing of the cause, upon the

440

INTERNATIONAL LAW.

CH. XXXII.

§ 23. As a general rule, the subject of the enemy cannot appear as a claimant, for he has no persona standi in the court. But if the captured vessel was sailing under a cartel, or flag of truce, and was captured by mistake or under circumstances of suspicion, it is considered to form an exception to this rule, and the enemy master is allowed to appear and claim restitution. A party to be entitled to assert a claim in a prize-court must be the general owner of the property; a person who has a mere lien on the property for a debt, whether liquidated or unliquidated, is not entitled to assert his claim; nor can the mortgagee assert any claim, where the mortgager has been left in possession. An appearance by a proctor for the claimants, duly entered, cures all defects of process, such as the want of monition or of due notice. And, even assuming that one partner has no authority to appoint a proctor for all the parties, yet a general appearance for all by a proctor is good and legally binding. A claim must be made by the parties interested, if present, or, in their absence, by the master of the ship, or some agent of the owners. A mere stranger will not be permitted to interpose a claim merely to speculate on the chances of an acquittal.'

ship's papers and the evidence in preparatorio. The suspension of proceedings for a year and a day, after a default, is allowed only in cases, where it is doubtful upon the evidence, whether the captured property belong to the enemy or is neutral.-The 'Falcon,' Blatchf. Pr. Cas., 52.

The rule of the prize-courts, to allow a year and a day in case of neutral vessels, for claimants to appear, is not a vested right in neutrals. It is allowed as of right, where the condemnation, if decreed, must be solely on the ground of default. If the captors show a clear case of enemy property, or of contraband, or of breach of blockade, the court may condemn the vessel or cargo, although they are under neutral flag and papers, in the absence of claimants, without waiting a year and a day. So if it shall be proved, that the neutral owners have had notice and opportunity to appear, condemnation may go at once, solely on the ground of default, and the presumptions arising therefrom, without other proof.— The Julia,' 2 Sprague, 164.

What order may be made, where the libellants in a prize cause are chargeable with wrongful delay in the prosecution of the cause, sce Jecker v. Montgomery, 13 How., 498; the Springbock,' Blatchf. Pr. Cas., 349.

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1 The Falcon, 6 Rob., 199; the 'Daifjie,' 3 Rob., 143; the 'Mary,' 5 Rob., 199; the 'Eenrom,' 2 Rob., 1; the 'Tobago,' 5 Rob., 218; the 'Frances,' 8 Cranch. R., 355; the 'Marianna,' 6 Rob., 24; Balch . Darrel, Bees R., 74; Penhallow v. Doane, 2 Dallas R., 54; Hills v. Ross, 3 Dallas R., 231.

Whether a maritime lien for work and materials, alleged to have been furnished to a vessel prior to her capture jure belli, is lost by such capture, is a proper subject for investigation and decision by the prize-court, before

$24. A claimant who wishes to procure the restitution of any property captured as prize, must, after the libel is filed, and at or before the return of the monition thereon, or within the time assigned by the court, enter his claim for such property, accompanied with an affidavit, stating briefly the facts respecting the claim and its verity. If the parties themselves are not within the jurisdiction of the court, or at a very great distance, the claim may be sworn to by an agent. Before the claim duly sworn to is put in, the claimants are not, as a general rule, permitted to examine the ship's papers, as this might lead to great abuses, but sometimes, on special application, the court will permit so many of the papers to be examined as it may deem proper, in order to enable the claimant to set forth the particular grounds of his claim. The pleadings both on the part of the captors and claimants, are of a very simple character, formed upon the rules and practice of the Roman law. Both the libel and claim are of a general character, special allegations of particular circumstances not being usually made. With respect to the reception of evidence, courts allow every relaxation of technical rules which are permitted to prevail in the country in which it is taken. As a general rule no claim is admitted which stands in entire opposition to the ship's papers and to the preparatory examinations. Nor can

which the captured vessel is brought for adjudication, and which the parties setting up such lien can, on proper presentation of their claim to that tribunal, have decided. But if such parties do not so present, and ask to have it decided, the question is not properly before the Supreme Court for review, in a case where the District court only dismissed the libel, as improperly filed on its instance side.-The 'Nassau,' 4 Wall., 634; Harlan v. the 'Nassau,' Blatchf. Pr. Cas., 220.

A mortgagee of captured property has no right to assert his mortgage in a prize-court, and demand its payment out of the proceeds of the property, if condemned. All liens upon captured property, which are not in their very nature open and apparent, like that for freight upon the cargo laden on board a captured vessel, are utterly disregarded by prize-courts. -The Delta,' Blatchf. Pr. Cas., 133.

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In proceedings in prize, and under principles of international law, mortgages on vessels captured jure belli are to be treated only as liens, subject to being overridden by the capture; not as jura in re, capable of an enforcement superior to the claims of the captors.-The Hampton,' 5 Wall., 372.

Demands, against property captured as prize of war, must be adjusted in a prize-court. The property arrested as prize, is not attachable at the suit of private parties. It such parties have claim, which, in their view, override the rights of captors, they must present them to the prize-court for settlement.-The 'Nassau,' 4 Wall., 634; Harlan v. the 'Nassau,' Blatchf. Pr. Cas., 220.

any person be permitted to claim in a prize where the transaction in which he is engaged is in violation of the municipal law of his own country, or of that where the court is sitting. Claimants must give bonds for costs and expenses to the amount required by statute or the rules of the court.1

§ 25. When a sentence is pronounced either of acquittal or condemnation, it is generally, in the English prize-court, by an interlocutory decree, but in the United States it is the more common practice to reserve a decree until a final decision of all the questions before the court. Decrees of acquittal may be either with or without damages and costs, or on condition of paying costs and expenses. If the specific property remains in the custody of the court and restitution is decreed, it is directed to be delivered to the claimant; but if disposed of, the proceeds are so delivered. In case of condemnation in favour of a privateer, it is usual in England to deliver a decree, with a proper commission to the master of the privateer to make sale of the prize and return an account to the court; but in the United States all sales before and after condemna

1 The Port Mary,' 3 Rob., 233; the 'La Flora,' 6 Rob. 1; the 'Walsingham Packet,' 2 Rob., 77; the Etrusco,' 4 Rob., 262; the 'Cornelis and Maria,' 5 Rob., 23; the Peacock,' 4 Rob., 185; the 'Arabella and Madeira,' 2 Gallis. R., 368.

It is not competent for a neutral consul, without the special authority of his government, to interpose a claim in a case of prize, on account of a violation of the territorial jurisdiction of his country in the capture.(Supreme Ct., 1818), the 'Anne,' 3 Wheat., 435.

Where, after condemnation of a vessel and cargo, the decree as to the vessel was opened by consent on the application of owners of the vessel, who showed that she had been previously captured from them by a privateer of the enemy-Held, that the vessel should be restored, on payment of one eighth of her value as salvage to the captors.-The Hattie,' Blatchf. Pr. Cas., 579.

Cargo on board enemy's vessel, being neutral property on transportation in a lawful trade, released without costs to the captors, there having been no probable cause for its arrest.-The 'Velasco,' Blatchf. Pr. Cas., 54.

Where 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, she was restored to the claimants without costs.-The 'Jane Campbell,' Blatchf. Pr. Cas., 101.

Instances of the vessel and cargo released and restored to the claimants upon the facts in the case-See the 'Tropic Wind,' Blatchf. Pr. Cas., 64; the 'Labuan,' Ib., 165; the Glen,' Ib., 375; the Sybil,' Ib., 615; the 'Sarah M. Newhall,' Ib., 629; the 'Argonaut,' Ib., 62; the 'Hannah M. Johnson,' Ib., 2; the 'Forest King,' Ib., 2; the Gondar,' Ib., 649, 669; reversing S. C., Ib., 266; the 'Science,' 5 Wall., 178; the 'Teresita,' Ib., 181; the 'Volant,' Ib., 179.

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