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equal or inferior force, is granted for division among the officers and crew as prize money—and this is called head-money. The act of the Congress of the United States upon this subject, has received no judicial construction; but under the British act there have been several decisions, to which reference is made.1
Where no special statute intervenes, the decree of distribution is executed in the manner and by the persons prescribed by the court, whether clerk, marshal, prize agent, or commissioners, and the power of the court is summarily exercised to compel the accounting for and payment of prize proceeds by all persons in whose hands they have been intrusted or deposited. This may be by a proceeding either in rem or in personam; and the remedy is not limited to any stipulation taken in the cause, but the prize proceeds will be followed wheresoever they have gone, unless they have reached the hands of a bona fide purchaser without notice of the claim.”
As a general principle, the power of a prize court subsists after a general adjudication, to take any proceedings that may be requisite to the final and
Several Dutch Schugts, 6 Rob., 48; L'Alerte, 6 Rob., 238; The San Joseph, 6 Rob., 331; The Babillion, Edw., 39; La Clornide, 1 Dod., 436; L'Elise, 1 Dod., 442; The Matilda, 1 Dod., 367.
• Willis vs. Commissioners, 4 T. R. 33; S. C., 5 East., 22; Bingham vs. Cabot, 3 Dall., 19; Hill vs. Ross, 3 Dall., 331; Home vs. Camden, 1 H. Bl., 474; The Louis, 5 Rob., 146; The Pomona, 1 Dod., 95; The Polly, 5 Rob., 147; The Printz Henrick Von Prussen, 6 Rob., 95; The Exeter, 1 Rob., 173; The Princessa, 2 Rob., 31.
definitive settlement of every thing respecting the prize.
By act of Congress, of April, 1849, ch. ciii., $ 8, the office of prize agent is abolished. It is understood that the defalcations and malfeasances of sev eral of these officers who were intrusted with the proceeds of the prizes taken by the vessels of the navy in the Gulf of Mexico, during the war between the United States and Mexico induced this provi. sion. The same act provides, that“ All prize money from captures made by the vessels of the navy of the United States, received by the marshal, who shall make sale of such prizes, or the net proceeds thereof after paying therefrom all charges as provided by law, shall, within sixty days after such sale, he deposited in the treasury of the United States, to be disbursed therefrom as provided by law under the directions of the secretary of the
This statute provision has received no judicial construction. It is apprehended that it was not its purpose to (nor does it in terms) supersede the necessity of a regular decree of distribution by the prize court. Such decree is frequently based upon the determination of the nice and sometimes complicated questions arising under claims of joint-capture, etc., which are the proper subjects for the adjudication of prize courts, and it could not have been intended to clothe the department of the navy with any of the functions of a judicial tribunal.
It was the obvious design of the law to avoid in
1 The cases last cited.
the future, the complaints and annoyances which had resulted from a fraudulent diversion by prize agents, from the hands of the lawful distributees, of the funds intrusted to them for distribution.
Ordinarily, an execution of the decree of distribu. tion, by officers of the court, acting under the direct authority of the court, and drawing the fund from the registry or depository of the court, would not only be much more convenient to the distributees, but it would save to them the additional expense resulting from the employment of an agent to represent them at the navy department.
In the great majority of cases, it is believed that the purpose of the law would be accomplished, without any departure from its provisions, by the exercise of that discretion with which the court as a prize court is unquestionably clothed, of directing a sale of the prize property to be made by the commissioners of prize, the proceeds to be by them received and deposited in the registry, or with the usual depository of the court, and by them disbursed therefrom, pursuant to the law and the pro..visions of the decree.
titution on re
If the documentary proofs and the examination Decree of resin preparatorio, disclose a case of recapture merely, capture. then two questions arise—first, whether the original belligerent owner is or not entitled to restitution, and if so entitled, what is the compensation to be paid by way of salvage ?
We have already fully considered the principles When made, and authorities upon which the right of the bellige- payment of rent owner, whose ship having been captured by salvage. the enemy is recaptured, to have restitution made
vage and its
tute in the
to him, exists or is lost, in that chapter treating of the jus postliminium. And also the subject of the compensation in way of salvage, where the owner is entitled to a restitution.
Here, it is only necessary to refer to some few additional authorities, illustrative of the practice
and proceedings of prize courts in such cases. Military sal Discussions as to the general principles of law amount regu. upon which salvage should be awarded to recaplated by stat
tors on a decree of restitution, and the measure United States, of compensation, are superseded by the interven
tion of legislative provisions. This is the case in the United States. By act of Congress of March 3d, Chap. xiv., it is provided, that in cases of recapture of vessels or goods belonging to persons resident within or under the protection of the United States, the same not having been condemned as prize, by competent authority before the recapture, shall be restored on payment of salvage of one eighth of the value, if recaptured by a public ship, and one sixth, if recaptured by a private ship; and if the recaptured vessel shall appear to have been set forth and armed as a vessel of war, before such capture, or afterwards, and before the recapture, then the salvage to be one moiety of the value. If the recaptured vessel belong to the government
The Santa Cruz, 1 Rob., 50; L'Actif, Edw., 185; The Ceylon, 1 Dods., 105; The Purssima Conception, 6 Rob., 45; The Victoria, Edw., 97; The Flad Oyen, 1 Rob., 135; The Cosmopolite, 3 Rob., 333; Hudson vs. Guestier, 4 Cranch, 293, S. C., 6 Cranch, 281; The Arabella and Madeira, 2 Gallis., 368; The Falcon, 6 Rob., 194; The Schooner Sophie, 6 Rob., 138; The Kiertighett, 3 Rob., 96; The Perseverance, 2 Rob., 139; The Nortra de Conceicas, 5 Rob., 294; The Countess of Lauderdale, 4 Rob.,
and be unarmed, the salvage to be one sixth if recaptured by a private ship, and one twelfth if recaptured by a public ship; if armed, then the salvage to be one moiety if recaptured by a public ship. In respect to public armed ships, the statute provides for the same rate of salvage by the cargo as by the vessel ; but in respect to private ships (as it is apprehended by inadvertence), the rate of salvage is made the same on the cargo
whether the vessel be armed or unarmed.
What constitutes a “setting forth as a vessel of war," within the meaning of this act, has received no judicial construction by the United States court, but the same provision, by a like clause in the British act, has received the interpretation of the English courts in the cases cited.”
Salvage, when allowed as a condition of restitution of recaptured property, is ascertained either by an appraisal of the property by appraisers duly appointed by the court, or by its sale, if the parties consent to such mode; and its distribution is
upon decree, in like manner as the distribution of the proceeds of prize, upon condemnation and sale.
Where, upon the hearing, in the first instance, Question of
damage, costs, upon the papers and documents found on board
and expenses, the vessel, and the examination in preparatorio Testylting from taken by the commissioners, it appears, that for titution. any cause, in the judgment of the court, restitution should be decreed in favor of the claimants, the
The Adeline, 9 Cranch, 244. • The Ceylon, i Dod., 105; The Horatio, 6 Rob., 320; The Nostra Signora del Rosario, 3 Rob., 10.