General Rules and Principles.

by the government, the property, when con- | loss would fall on innocent persons, interest was cemned, becomes a droit of the government. refused. Ibid. Carrington et al. v. The Merchants' Insurance Company, 8 Peters, 495.

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10. It is a great irregularity in the marshal to retain the property, or the proceeds thereof, in his own hands, or to distribute the same among the parties entitled, without a special order from the court; but such irregularity may be cured by the assent and ratification of all the parties interested, if there be no mala fides. The Collector, 6 Wheat. 194; 5 Cond. Rep. 62.

11. Upon an admiralty proceeding in rem, where the proceeds of the sale are brought into 102 court, they are not liable to make good a loss 103 sustained by the purchaser, in consequence of a defect discovered in the article sold. The Monte Allegre, 9 Wheat. 616; 5 Cond. Rep. 709.

1. The proper proceeding to bring forward the claims of the crew of a privateer for prize money, is by libel in the admiralty. Keen et al. v. The Gloucester, C. C. U. S., Penn. District, 2 Dall. Rep. 36.

2. Where the prize is sold, and the money lies in the hands of the marshal, and he refuses to pay, the persons entitled have a double remedy, by action at law for money had and received, or by a supplemental libel against the marshal, which is only a proceeding to carry into execution the former decree. Ibid.

3. A vessel libelled for prize, in a perishing condition, ordered to be sold pendente lite, on an ex parte application. Stoddart v. The Squirrel, 2 Dall. 40.

12. In a suit for wages, or for a share in a whaling voyage, if the defence sets up misconduct, there must be a special allegation of the facts, with due certainty of time, place, and other circumstances; otherwise the court will reject it. Loose allegations of general misconduct are insufficient. Macomber v. Thompson, 1 Sumner's C. C. R. 384.

13. The same rule does not prevail in the admiralty as in equity, that the answer directly responsive to the allegations of the bill is to be treated as sufficient proof of the facts in favour of the respondent, unless overcome by the evidence of two witnesses, or of one witness and other circumstances of equivalent force. The answer may be evidence, but it is not conclusive. Andrews v. Wall and others, 3 Howard, 572.

4. A decree of a court of admiralty, in rem, is final and conclusive as to all matters in controversy; and the grounds of the decree cannot 14. The proof and allegations must coincide. be inquired into in another admiralty court, on Proof to facts not put in contestation by the a libel to carry the decree into execution. Pen- pleadings, and allegations of facts not established hallow v. Doane, 3 Dall. Rep. 54; 1 Cond. Rep. 21. by proofs, will both be rejected. The Brig Sa5. In a suit in admiralty against three part-rah Ann, 2 Sumner's C. C. R. 206. ners, the proctor, though employed only by one, appeared for all, and the pleadings were carried on in their joint names; all the partners were sufficiently before the court. Hills v. Ross, 3 Dall. 331.

15. Appellate courts, in admiralty causes, allow parties, under certain circumstances, non allegata allegare, and non probata probare. Ibid. 16. One claimant in the admiralty cannot be injured by the contumacy of another. Mary Stafford, 9 Cranch, 126; 3 Cond. Rep. 306.

The

6. Where the report of persons appointed to ascertain and assess damages for a marine tres- 17. If the national character of property, cappass, gave a gross sum accompanied by expla- tured and brought in for adjudication, appears nations, to be paid to the captors, the report was ambiguous or neutral, and no claim is interset aside. The omission of the appellant to ex-posed, the cause is postponed for a year and a cept to the report does not cure an error in the face of the record; and the omission to give such explanations is such error. Murray v. The Schooner Charming Betsey, 2 Cranch, 64; 1 Cond. Rep. 358.

7. It is not necessary to take exceptions to the report of auditors, if the errors appear on the face of the report. Rose v. Himely, 5 Cranch, 313; 2 Cond. Rep. 266.

8. The Supreme Court will not allow a new claim to be interposed before it ; but will remand the case to the circuit court. The Societé, 9 Cranch, 209; 3 Cond. Rep. 373.

9. If property proceeded against in the admiralty is ordered to be restored, interest is not to be paid if the proceeds of the property remain in the hands of the court. If it was in the hands of an individual, it would or would not bear interest, as the court should direct. Where the

day after the prize proceedings are commenced, and if no claimant appears within that time, the property is condemned to the captors. The Harrison, 1 Wheat. 298; 3 Cond. Rep. 571.

18. In prize causes, the Supreme Court exercises an appellate jurisdiction only, and a claim cannot for the first time be interposed there; but where the court below had proceeded to adjudication before the day and a year had elapsed, the cause will be remanded, with directions to allow a claim to be there filed, and the libel to be amended. Ibid.

19. Where merits clearly appear on the record, it is the settled practice in admiralty proceedings not to dismiss the libel, but to allow the party to assert his rights in a new allegation. The Adeline, 9 Cranch, 244; 3 Cond. Rep. 397.

20. No proceedings can be more unlike than those in the common law, and those in the ad

General Rules and Principles.

miralty. In prize causes in an especial manner, enemy, have assumed neutral or even enemy's the allegations, the proofs, and the proceedings papers. Ibid. are, in general, modelled in the civil law, with 33. It is a general rule in prize causes, that such additions and alterations as the practice of the decision should be prompt, and should be nations, and the rights of neutrals and bellige-made, unless some good reason for it exist, on rents unavoidably impose. Ibid.

21. The court of prize is emphatically a court of the law of nations, and it takes neither its rules nor its character from the mere municipal regulations of any country. Ibid.

22. Irregularities on the part of the captors, originating in mere mistake or negligence, which work no irreparable mischief, and are consistent with good faith, will not forfeit their rights of prize. The Anne, 3 Wheat. 435; 4 Cond. Rep.

286.

23. In revenue or instance causes the court may, upon appeal, allow the introduction of a new allegation into the information. The Edward, 1 Wheat. 261; 3 Cond. Rep. 565.

24. Where the evidence is sufficient to show a breach of the law, but the information is not sufficiently certain, the Supreme Court will remand the cause to the circuit court, with directions to amend the proceedings. Ibid.

25. When the pleadings in a prize, or other admiralty cause, are too informal and defective to pronounce a final decree upon the merits, the cause will be remanded from the supreme to the circuit court, with directions to permit the pleadings to be amended, and for further proceedings. The Divina Pastora, 4 Wheat. 52; 4 Cond. Rep. 388.

the papers and testimony afforded by the captured vessel, or which can be invoked from the papers of other vessels in possession of the court. This rule ought to be held sacred, in that whole description of causes to which the reasons on which it is founded apply. The George, 1 Wheat. 408; 3 Cond. Rep. 608.

34. Where an inspection and comparison of original documents is material to the decision of a prize cause, the Supreme Court will direct the original papers to be sent up from the court below. The Elsineur, 1 Wheat. 332; 3 Cond. Rep. 615.

35. In prize causes, the evidence to acquit or condemn must come, in the first instance, from the papers and crew of the captured ship. The Dos Hermanos, 2 Wheat. 76; 4 Cond. Rep. 39.

36. It is the duty of the captors to bring the ship's papers into the registry of the district court, and to have the examination of the principal officers and seamen of the captured ship taken, on the standing interrogatories. The Pizarro, 2 Wheat. 227; 4 Cond. Rep. 103.

37. The claimants have no right to litigate the question, whether the captors were duly commissioned; the claimants have no persona standi in judicio, to assert the rights of the United 26. Restitution was decreed. The captors' States. Put if the capture be made by a noncosts and expenses ordered to be paid by the commissioned captor, the prize will be condemnclaimant, it being his fault that defective docu-ed to the United States. Ibid. ments were put on board. The Venus, 5 Wheat. 127; 4 Cond. Rep. 613.

27. An admiralty suit, where an appeal has been taken from the circuit to the supreme court, but not prosecuted, will be dismissed, upon producing a certificate from the court below, that the appeal has been taken and not prosecuted. The Jonquille, 6 Wheat. 452; 5 Cond. Rep. 135.

38. The district court, by virtue of its general admiralty jurisdiction, may deliver property on bail; and the form in which the security is taken is immaterial; on such security, a summary judgment may be rendered to the appraised value. The Lively, 1 Gallis. C. C. R. 315.

39. It is the duty of commissioners to whom it is referred to estimate damages, to make their report as specific as the nature of the thing will 28. In admiralty and maritime causes, amend-admit; so that not only the result, but the detail ments, introductive of new causes of action, are within the scope of the general rule that the party may make new allegations in the appellate court. The Harmony, 1 Gallis. 123.

29. The district court, by virtue of its general admiralty jurisdiction, may deliver property on bail. The Alligator, 1 Gallis. 145.

30. It is immaterial in what manner the security is taken, whether by a sealed instrument, or by a stipulation in the nature of a recognisance, which is the best course, unless a different rule is prescribed by statute. On such security, a summary judgment may be rendered for the appraised value and costs. Ibid.

31. The general rule is, that no claim shall be admitted against the evidence of the ship's papers; but it applies to cases during war, and not before the commencement of it, or in time of peace. The Ann Green, 1 Gallis. 274.

32. Parties have been permitted to claim, who, in time of peace, or even just before the commencement of war, to elude or deceive the

of their judgment, should appear. Ibid.

40. In cases of restitution with damages, in prize proceedings, if, in order to ascertain the damages, an inspection or a sale of the cargo be, in the judgment of the commissioner or the parties, necessary; application should be made to the court for an order of unlivery and appraisement, or for a sale, as the case may require. Ibid.

41. Where, on the hearing, the property is acquitted, and an appeal interposed to a tribunal not sitting within the same jurisdiction, or into which the property does not follow the cause, as in the case of the supreme court in relation to the circuit courts, the claimants are generally allowed a delivery of the property; or, in case of a sale, of the proceeds on giving bail. Ibid.

42. Where there is a decree of condemnation, the same rule is, in general, adopted as to the captors. Ibid.

43. But it is always an application to the sound discretion of the court; and if there be

General Rules and Principles.

danger of injustice, the court will withhold it from either party, and content itself with retaining the property, or with ordering a sale, and a deposite of the proceeds in the registry. Ibid. 44. After a decree of condemnation, and an appeal is interposed, an order of sale, on the application of the captors, is almost a matter of course. The St. Lawrence, 1 Gallis. C. C. R. 467. 45. An obstinate suppression of the ship's papers, coupled with a voyage from an enemy's country, is sufficient cause of condemnation. Ibid.

46. It is irregular for a mere nominal agent to interpose claims for his principal, who is within the jurisdiction. Ibid.

47. In causes on the instance side of the admiralty, the answer of the claimant should be verified by oath: and in a suit for wages, the libellant may compel the adverse party to answer special interrogatories. Gammell v. Skinner, 2 Gallis. C. C. R. 45.

57. After a decree has been made in the supreme court, in a case taken there by appeal, and the cause sent back under a mandate, if again taken up by appeal, nothing is before the appellate court but the proceedings subsequent to the mandate. Himely v. Rose, 5 Cranch, 313; 2 Cond. Rep. 266.

58. If the supreme court reverse a decision in an admiralty cause, it will award restitution generally, although the property has been sold by order of the court below. The Rachel v. The U.S., 6 Cranch, 329; 2 Cond. Rep. 388.

59. In cases of seizures made on land under the revenue laws, the district court proceeds as a court of common law, according to the course of the exchequer on informations in rem, and the trial of issues of facts is to be by jury; but in cases of seizures on waters navigable from the sea by vessels of ten or more tons burthen, it proceeds as an instance court of admiralty, bý libel; and the trial is to be by the court. The Sarah, 8 Wheat. 391, 394; 5 Cond. Rep. 472.

48. In taxing the costs in prize cases, where there are several claims, some of which are dis- 60. The courts of the United States, proceedposed of by a final decree of condemnation, while ing as courts of admiralty and maritime jurisothers are suspended by appeal; the practice isdiction, may issue the process of attachment to to tax the costs and expenses which have ac- compel appearance, both in cases of maritime crued specially, upon each claim so disposed of, torts and contracts. Manro v. Almeida, 10 Wheat. as a separate charge against the same; and to 473; 6 Cond. Rep. 190. add thereto an average proportion of the general costs and expenses which have accrued in refererence to all the claims in the cause. The Hiram and The Hero, 2 Gallis. C. C. R. 60.

49. Regularly, no delivery on bail, of prize property, ought to be made, either to the captors or claimant, until after a hearing of the cause; in most cases a sale is preferable to an appraisement, when the value is to be ascertained for the purpose of delivery on bail. The George, 2 Gallis. C. C. R. 249.

50. There is no doubt the United States may well intervene in prize causes, on the ground of collusive capture, to secure and enforce their rights; whether growing out of the breach of municipal regulations, or of the law of war. Ibid.

51. A general prize allegation cannot properly be joined with an information on a seizure for the violation of a statute. The Dimon, 2 Gallis. C. C. R. 306.

52. Where a party claims under an attachment, he must file a caution in court, before any notice will be taken of the attachment by the court. The Louisetta, 2 Gallis. C. C. R. 307.

53. No delivery of property on bail, in a prize cause, can be made legally, where the United States are parties, without due notice to the district attorney. Ex parte Robbins, 2 Gallis. C. C. R. 320.

54. In proceedings in rem, the admiralty has a right to order the thing to be taken into the custody of the law; and it is presumed to be in such custody, unless the contrary is shown. Jennings v. Carson, 4 Cranch, 2; 2 Cond. Rep. 2. 55. By the practice of the admiralty, a vessel, when libelled, is placed under the absolute control of the court. Ibid.

56. In the admiralty, the libellant and claimant are both actors. Ibid.

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61. Under the process act of 1792, ch. 147, section 2, the proceedings in cases of admiralty and maritime jurisdiction in the courts of the United States, are to be according to the modified admiralty practice in our own country, engrafted upon British practice: and it is not a sufficient reason for rejecting a particular process, which has been constantly used in the admiralty courts of this country, that it has fallen into desuetude in England. Ibid.

62. The process by attachment may issue, wherever the defendant has concealed himself, or absconded from the country, and the goods to be attached are within the jurisdiction of the admiralty. Ibid.

63. It may issue against his goods and chattels, and against his credits and effects in the hands of third persons. Ibid.

64. The remedy by attachment in the admiralty, in maritime cases, applies even where the same goods are liable to the process of foreign attachment issuing from the courts of common law. 10 Wheat. 473; 6 Cond. Rep. 180.

65. It applies to the case of a piratical capture, and the civil remedy is not merged in the criminal offence. Ibid.

66. In case of default, the property attached may be condemned to answer the demand of the libellant. Ibid.

67. It is not necessary that the property to be attached should be specified in the libel. Ibid.

68. In every case of a motion to the court for a cassetur, the facts on which it is founded must be proved by affidavit. The U.S. v. Coolidge, 2 Gallis. 364.

69. The circuit court will issue letters rogatory, for the purpose of obtaining testimony, when the government of the place where the evidence is obtained will not permit a commis

Libel and Proceedings.

sion to be issued. Nelson et al. v. The U. S., 1 | distinct offences in the alternative in the same Peters' C. C. R. 235. count, is not therefore vicious. Ibid.

75. Under that clause of the statute which subjects to forfeiture a vessel fitted out in the ports of the United States, it is not necessary that the fitting should be complete, and the vessel ready for sea, before the penalty attaches; but, as the preparations have progressed so far as clearly and satisfactorily to show the purpose for which they are made, the right of seizure

76. In the admiralty, the objection to the re

the appearance of the parties interested in the property seized, and filing their claims for the same. The Merino et al. 9 Wheat. 391; 5 Cond. Rep. 623.

77. Although a foreign consul is admitted to interpose a claim in the admiralty for subjects unknown of his nation, yet before restitution can be decreed, proof of the individual proprietary interest must be exhibited. The Antelope, 10 Wheat. 66; 6 Cond. Rep. 30.

70. A libel was filed in the district court of Maryland for a salvage service performed by the libellant, the master and owner of the sloop Liberty, and by his crew, in saving certain goods and merchandises on board of the brig Spark, while aground on the bar at Thomas's Point, in the Chesapeake bay. The goods were owned by a number of persons, in several and distinct rights; and a general claim and answer were attaches. Ibid. 389. interposed in behalf of all of them, by Jarvis and Brown, (the owners of a part of them,) with-gularity of the original proceedings is waived by out naming who, in particular, the owners were, or distinguishing their separate proprietary interests. This proceeding was doubtless irregular in both respects. Jarvis and Brown had no authority, merely as co-shippers, to interpose any claim for other shippers with whom they had no privity of interest or consignment; and several claims should have been interposed by the several owners, or by other persons authorized to act for them in the premises, each intervening in his own name for his proprietary interest, and specifying it. If any owner should not appear to claim any particular parcel of the property, the habit of the courts of admiralty is, to retain such property, or its proceeds, after deducting the salvage, until a claim is made, or a year and a day have elapsed from the time of the institution of the proceedings. And when separate claims are interposed, although the libel is joint against the whole property, each claim is treated as a distinct and independent proceeding, in the nature of a several suit, upon which there may be a several independent hearing, decree, and appeal. This is very familiar in practice in prize causes and seizures in rem for forfeitures, and is equally applicable to all other proceedings in rem, whenever there are distinct and independent claimants. Stratton v. Jarvis et al., 8 Peters, 4. 71. The general rule in the admiralty, in cases of derelict, is to allow one moiety of the property saved to the salvors; but this allowance may be enlarged by the circumstances of the particular case, where the services performed are of an extraordinary nature. Sprague v. One hundred barrels of flour, 2 Story's C. C. R. 195.

2. Libel and Proceedings.

72. The whole world are supposed to have notice of admiralty proceedings, and therefore are parties; but those who have no interest in the vessel which could be asserted in the court of admiralty, have no notice of her seizure, and can, on no principle of justice or reason, be considered as parties in the cause. The Mary, 9 Cranch, 126; 3 Cond. Rep. 306.

73. In admiralty proceedings, a libel in the nature of an information does not require all the formality and technical precision of an indictment at common law. If the allegations are such as plainly and distinctly mark the offence, it is all that is necessary; and where it is founded upon a statute, it is sufficient if it pursue the words of the law. 9 Wheat. 381; 5 Cond. Rep. 623. 74. Under the act of March 22d, 1794, ch. 187, which creates two distinct offences, stating these VOL. I.-9

78. Under the process act of May 8th, 1792, ch. 137, the proceedings in cases of admiralty and maritime jurisdiction are to be according to the modified adm.alty practice in the United States, engrafted on the British practice; and it is not a sufficient reason for rejecting a particu lar process, which has been constantly in use in the United States, that it has fallen into desuetude in England. Manro v. Almeida, 10 Wheat. 473; 6 Cond. Rep. 190.

79. The process of attachment may issue where a defendant has concealed himself, or absconded from the country, and the goods and effects to be attached are within the jurisdiction of the admiralty; and may issue against the credits, the goods, and chattels of the party. Ibid.

80. The remedy by attachment in the admiralty in maritime cases, applies even where the same goods are liable to the process of foreign attachment, issuing from the courts of common law. Ibid.

81. It applies to cases of a piratical capture, and the civil remedy is not merged in the criminal offence. lbid.

82. In case of default, the property may be condemned to answer the demand of the libellant. Ibid.

83. It seems that an attachment cannot issue, without an express order of the judge, but it may be issued simultaneously with the monition; and where the attachment issued in this manner, and in pursuance of the prayer in the libel, the supreme court will presume that it was regularly issued. Ibid.

84. Where the court of admiralty has parted with the possession of the property upon bail or stipulation, and it is necessary for the purposes of justice to retake the property into the custody of the court, the proper process against any person not a party to the stipulation, but who is alleged to have the actual or constructive possession, is a monition, and not an execution in the first instance. The Gran Para, 10 Wheat. 497; 6 Cond. Rep. 199.

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Libel and Proceedings.

85. In admiralty proceedings, amendments | of the offender is not necessary as a preliminary may be made in the circuit court, by adding a to the proceeding in rem. Ibid.

new count to the libel, although the district court 95. A material-man, who had taken a promishad exclusive original jurisdiction of the subject-sory note for his claim on a vessel, and who matter; the practice being uniform to permit the parties, whenever public justice and substantial merits require it, to introduce new allegations and new proofs: non allegata allegare, et non probata probare. The Marianna Flora, 11 Wheat. 1; 6 Cond. Rep. 201.

107. Libels in admiralty should state the subject matter in articles with certainty and preci94. In libels in the admiralty, for a forfeiture, sion, and with averments admitting of distinct whether there be a penalty attached to the act answers. The Boston, 1 Sumner's C. C. R. 328. or not, the proceedings in rem are independent 108. The answer should meet each material of and wholly unaffected by any criminal pro-allegation in the libel, with an admission, a de ceeding in personam: and a personal conviction nial, or a defence. Ibid.