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prize; and in England, as well as in the United States, the monition usually includes a warrant to take possession of the property. The necessity of such a warrant is apparent, where the property, as in England, is in the custody of the captors, until the filing of the libel; but not so apparent, where, as in the United States, it is already in the custody of the court; for it would be a mere transfer from the custody of the commissioners who are officers of the court, to that of the marshal, who is also an officer of the court. But this change of custody, under a warrant issued with the monition, has been the usual practice in the United States; and when the marshal thus takes possession, he is bound to keep the property in salva et arcta custodia; and if, by his negligence, any loss happens, he is responsible to the court; for he, like the commissioners, is the mere agent of the court, engaged to make effective its guardianship.
The monition is served in England by posting a copy at the Royal Exchange, in London; in the United States, by posting a copy on the mast of the prize vessel, and wheresoever the judge may direct, and also by publication in the newspapers
of the place or vicinity. Proceedings If, upon the return day of the process, no claim on return day
is or has been interposed, a default is entered of record, and the court thereupon proceeds to examine the evidence; and if the proof of enemy's property—or of lawful prize for any sufficient cause, if it be not enemy's property be clearly established will immediately decree condemnation. If, upon the evidence, the case appear at all doubtful, a decision will be postponed.
Service of monition.
It has been customary, by the modern practice, not to condemn merchandise in default of claim, till a year and a day have elapsed after the service of process, except where the presumption is strong of enemy's property, upon reasonable evidence."
If, however, a claim be interposed, the cause is to The claim. be heard in its proper order, upon the ship's papers and the preparatory examinations. This brings us to a consideration of the claim made, in opposition to the alleged rights of the captors, and the rules by which it is governed.
The claim must be made by the parties interested, By whom if present, and if not, by the master of the vessel, or by some agent of the owners of the property. It must be made by the general owner of the property; one who has a lien upon it for the payment of a debt, liquidated or not, is not entitled to claim, nor is a mortgagee where the morgagor remains in possession. A mere stranger is not permitted to interpose a claim, to speculate on the chances of restitution.”
It is a general principle, well established, that no one can be allowed to claim in a prize court, where the transaction in which he is engaged is in violation of the municipal laws of his own country.®
· The Harrison, 1 Wheat., 298; The Staadt Embden, 1 Rob., 26; The Avery, 2 Gall., 308.
* The Betsy, 1 Rob., 98; The Mentor, 1 Rob., 181; The Hub dah, 3 Rob., 239; The George, 3 Rob., 129; The William, 4 Rob., 215; The Susanna, 6 Rob., 48; The Tobago, 5 Rob., 218; The Frances, 8 Cranch, 235, 413; The Marianna, 6 Rob., 24; Bolch vs. Darrel, Bee., 74.
* The Walsingham Packet, 2 Rob., 77; The Etrusco, 4 Rob., 262; The Cornelius and Maria, 5 Rob., 23; The Abbey, ib., 251; The Recovery, 6 Rob., 341.
Nor can one be allowed to interpose a claim who is engaged in a trade forbidden by the laws of nature, of his own country, and of the forum. Unless under a flag of truce, a pass, license, treaty, or some public act of suspension of hostile character, the rule is inflexible that an enemy cannot interpose a claim.
And even where a capture has been made in violation of the territorial jurisdiction of a neutral country, the claim for restitution cannot be made by the enemy in person, but must be by the neutral government. The form of the claim consists of a simple statement of ownership and denial of lawful prize. It is not amendable, as a matter of course, nor will an amendment be allowed to correct the generality of a claim, unless sufficient excuse is shown for the omission on filing. 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 a general appearance for one partner is binding upon all, even though the one had no special authority to appoint a proctor. The
claim must, in all cases, be accompanied by an Afidavit of affidavit of the claimant or his lawful representa
tive (where the owner is absent at a great distance), specifying the facts on which the claim is based, and their verity; and before a claim is filed, accompanied by a special affidavit of the facts relied on to sustain it, it is a settled rule that no party is permitted to examine the papers filed or the pre
1 The Amedie, Edinburgh Review, Vol. XVI., No. 21, p. 426.
· The Hoop, 1 Rob., 196; The Vrow Catherina, 5 Rob., 15, and note to 3 Rob., 162.
* The Graaf Bernstoff, 3 Rnb., 109; The Sally, 3 Rob., 179 • Penhallow vs. Jones, 3 Dallas, 87.
paratory examination which has been transmitted to the court. Such examinations, as enabling par. Papers in regties to shape their claims to suit the case as estab-aminable until lished, might lead to very great abuses. Where, affidavit dled. however, a reference to the ship's papers may be essential, to enable a party to state in his affidavit the particulars of his claim, in such case,
upon a special application, setting forth the particular paper or fact sought to be ascertained, the court will allow an examination of the paper specially relating to that particular named in the application. As a general rule, it is settled, that no claim which is directly antagonistic to the ship's papers and the preparatory examination can be admitted. This, how. ever, applies to cases arising during, and not prior to,
And when a necessity of a simulation of papers, can be shown by a citizen, as in the case of trade with the enemy licensed by the state, the rule is not so unbending as to exclude his interest.? It is a mistaken idea that has been entertained, Claim for de
livery on bail. that after an appraisement of property brought in as prize, the claimant is entitled to its delivery to him as of course, upon the execution of sufficient bail therefor. This is not so, for it is an established rule of prize courts, never to allow property to be delivered on bail, except by the consent of all the parties, prior to a hearing, in the first instance, upon the ship's papers and the examinations in preparatorio.
If any of the prize property be perishable, an interlocutory decree of sale may be had, so that no inconvenience can result from an adherence to
The Port Mary, 3 Rob., 233. · La Flora, 6 Rob., 1 ; The Anna Catherina, 5 Rob., 15.
the rule, whereas its violation would inevitably lead to fraudulent practices. Even after a hearing, if the claim should be rejected, or be affected by an imputation of fraudulent or unlawful conduct, although an appeal be interposed, the application for a delivery of the property on bail will not be granted. But if the claimant should obtain a decree in his favor, interposition of an appeal by the captors, will not prevent a favorable consideration, by the court, of an application for delivery of the property on bail. And such an application is always listened to, if, after the hearing, the case be so doubtful that an order for further proof is directed by the court.
In all cases, the hearing in the first instance, is upon the libel and claim, the ship's papers and documents found on board, and the examination of the master and officers and crew of the captured vessel. “This is not,” as Judge Story says, “ a mere matter of practice and form; it is the very essence of the administration of prize law, and it is a great mistake to admit the common law notions in re spect to evidence to prevail in proceedings which have no analogy to those at common law."
If, upon the hearing, a decree of condemnation be demnation on rendered, and the claimants appeal therefrom, the hearing.
captors are, in general, entitled to a delivery of the prize property upon bail; but if there be no appeal, then the decree of condemnation is forthwith executed by a sale and distribution of the proceeds.
The Copenhagen, 3 Rob., 178. • Wheaton, 494, note; The Francis, 1 Gall., 614, and 8 Cr., 348; The Diana, 2 Gall., 164; Pratt's Story, 69.
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