to be filed by the party applying for the commission, and notice to the opposite party or his agent or attorney, accompanied with a copy of the interrogatories so filed, to file cross-interrogatories within twenty days from the service of such notice: Provided, however, that nothing in this rule shall prevent any party from giving oral testimony in open court in cases where, by law, it is admissible." 21 How. ix.

This rule is the same as the old 25th and 27th General Rules. In the Massachusetts district the practice for many years prior to this rule was, for the clerk to issue a commission as a matter of course, on written interrogatories and crossinterrogatories being filed.

CHAPTER XII.

OF COMMISSIONERS AND, REFEREES.

IN cases where the court shall deem it expedient or necessary for the purposes of justice, it may refer any matters arising in the progress of the suit to one or more commissioners, to be appointed by the court, to hear the parties and make report therein. And such commissioner or commissioners shall have and possess all the powers in the premises, which are usually given to or exercised by masters in chancery, in references to them, including the power to administer oaths to, and examine, the parties and witnesses touching the premises. The report of the commissioners will not be disturbed, unless it is shown to be affirmatively in the wrong.2 And parties excepting to the report should state, with reasonable precision, the grounds of their exception, with the mention of such particulars as will enable the court to ascertain what the basis of the exception is.3

1 44th Admiralty Rule. In Shaw v. Collyer, 4 Blatchf. C. C. 370, the district court heard sufficient evidence to show that the libellant had been in the employ of the respondent as master of a vessel, and that the principal question was the amount due. The case was then referred to a commissioner to take proofs as to the nature, extent, and value of the service, and as to the payments made, or other deductions to be allowed, if any, and to report thereon. Held, that this was unobjectionable.

2 Taber v. Jenny, 1 Sprague, 315. In The Ship Potomac, 2 Black, 581, a claim against a vessel for repairs was sent to a master to take an account. The report of the master found the amount due, but stated no account. General exceptions were taken to it, as "that it was for an amount far exceeding any amount of work performed," etc. Held, that if the respondent wished to contest any of the specific charges he should have had the report referred back to the master to state an account; and that it was not enough for the appellant merely to raise a doubt on conflicting testimony; that the judgment of the court below might possibly be erroneous, but that the judgment must be assumed to be correct till the contrary is made to appear.

Thus in The Commander In Chief, 1 Wallace, 43, the following exceptions were overruled for the reasons given: 1st. That the commissioner allowed improper and immaterial evidence to be introduced by the libellants. Overruled,

Where a cause is sent to a commissioner to assess damages, his report has not the effect of a verdict, but the court may modify it, or wholly reject it.1

If a cause is sent to a master, and he refuses to examine a certain witness, the party offering the witness should present to the court a written statement on oath, as to the particulars which the witness was offered to prove, that the court may compare it with what has been already proved by the other witnesses of the party, to enable the court to determine whether it was independent, or only cumulative proof.2

If a party is dissatisfied with a commissioner's report in respect to the matter of damages, he should file appropriate exceptions in the district court; otherwise objections to the amount will not be afterwards entertained. An objection to the regularity of a commissioner's report should be made by motion, and not by an exception to the report.1

An award of a referee will not be recommitted because the counsel for the libellants omitted to call the attention of the court to a matter which might have influenced the referee to increase the damages, if his attention had been called to it. The principal grounds for setting aside an award are fraud, collusion, and mistake. An award, made in pursuance of a rule of court directing a referee to determine the amount due and the question of costs, is sufficiently certain if it states the amount due, and that the libellants are entitled to costs, without stating the amount of the costs.5

In a salvage case, where an award was made out of court, and the salvors, being dissatisfied with the amount, libelled the vessel because it was not accompanied by any report of the evidence objected to, and there was, therefore, no means of determining whether it was proper or improper. 2d. That the commissioner had no evidence to justify his finding. Overruled, because there was no report of the facts. 3d. That witnesses were admitted to testify as to the value of the vessel who were not competent, and whose evidence should have been rejected. Overruled, because the names of the witnesses were not given, and it was not stated why they were incompetent, nor what their testimony was, nor the ground why it should have been rejected.

1 Sturgis v. Clough, 1 Wallace, 269.

2 The Steamer New Philadelphia, 1 Black, 62, 75.

The Vanderbilt, 6 Wallace, 230.

The Columbus, Abbott, Adm. 37.

The Liverpool Packet, 2 Sprague, 37.

in admiralty, Dr. Lushington said it was a grossly factious proceeding, and condemned the salvors in costs and damages for the detention of the vessel.1

The Nautilus, Swabey, Adm. 105.

CHAPTER XIII.

OF PRIZE CAUSES.

Ir is necessary to speak of the rules and practice of admiralty peculiar to prize causes.1 In 18642 an act of Congress was passed which provides very fully for all matters likely to arise in prize causes. It is the duty of the commanding officer of the vessel making the capture, to secure the documents of the ship and cargo, including the log-book, and all other documents, letters, and papers found on board, to make an inventory of the same, and to seal them up, and send them with the inventory to the court in which proceedings are to be had, with a written statement that they are all the papers found, and in the condition in which they were found, and explaining the absence of any documents or papers, or any change in their condition.

He is required to send to the court as witnesses, the master,3 one or more of the other officers, the supercargo, purser, or agent of the prize, and any person found on board whom he may suppose to be interested in, or to have knowledge respecting, the title, national character, or destination of the prize. He is also to send the prize, with the documents, papers, and witnesses, under charge of a competent prize-master and prize-crew, into port for adjudication, explaining the absence of any usual witnesses; and in the absence of instructions from superior authority as to the port to which it shall be sent, he shall select such port as he shall deem most convenient in view of the interests of probable claimants, as well as of the captors. If the captured vessel, or any part of the captured property, is not in condition to be sent in for adjudication, a survey shall be had thereon, and an appraisement made by

1 See the elaborate essays of Mr. Justice Story on this subject in 1 Wheat. App. 494, and 2 Wheat. App. 1.

2 Act of 1864, c. 174, 13 U. S. Stats. at Large, 306. This act we give in the Appendix.

* See The Julia, 2 Sprague, 164.