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evidence creates a reasonable doubt of the proprietary interest, the legality of the trade, or the integrity of the transactions—in all such cases, farther proof becomes necessary, and will be permitted if the privilege of introducing it be not forfeited by the fraud or misconduct of the parties.'
In all cases where farther proof is necessary, and it is not allowed, a condemnation follows of course, in like manner as if the evidence had established hostile character.
Farther proof is never allowed to claimants where When not alfraudulent papers have been used, or where there has been a voluntary spoliation of papers, or a fraudulent covering or suppression of an enemy's interest, or where there is a false destination and false papers, or where the case is palpably incapable of fair ex. planation, or where there has been prevarication, or an attempt to impose spurious claims upon the court, or such a general want of good faith as to show that the parties cannot safely be trusted with an order for farther proof. And if, upon farther proof, none such is produced, or that which is produced is defective, or the parties decline to testify, or do so evasively, it is deemed conclusive against them, and condemnation follows; for it is a general rule of prize courts, that the onus probandi rests upon the claimants, and if they fail to sustain their allegations, condemnation ensues.”
'The Jonge Pieter, 4 Rob., 79; The Welvaart, 1 Rob., 122; The Polly, 2 Rob., 261; The Juffrow Anna, 1 Rob., 125; The Graaf Bernsioff, 3 Rob., 109; The Eenrom, 2 Rob., 1; The Juffrow Elbrecht, 1 Rob., 127; The Rising Sun, 2 Rob., 104.
· The Nancy, 3 Rob., 122; The Marx, 6 Rob., 79; The Vrow Hermina, 1 Rob., 163; The Walsingham Packet, 2 Rob., 77; The
Evidence on order for far
Farther proof may be ordered in favor of the one party, and not the other, or in favor of both.
When it is admitted on behalf of the captors, ther proof. they may introduce papers taken on board another
ship, if properly verified by affidavit, and they may invoke papers from another prize cause, and upon an order for farther proof, the affidavits of the captors themselves, as to facts within their own knowledge, are admissible in evidence.
It has been held in one case, not however reconcilable with the strict rule of prize courts, that the captors, to show the domicil of the claimants, may, without an order for farther proof, introduce at the first hearing, a deposition of the claimant, given in another cause.
Where farther proof is allowed the claimants, proof taken.
their own depositions, those of their clerks, and the correspondence between them and their agents, are admissible in evidence.?
In all cases of farther proof, the additional evidence, wherever practicable, should be taken before the prize commissioners, and reported to the court. Affidavits taken in foreign countries, before notaries public, whose attestations are perfectly verified, have been admitted in evidence, but the safer course is that which is adopted by the rule of
Rosalie and Betty, 2 Rob., 343; The Countess of Lauderdale, 4
The Romeo, 6 Rob., 351; The Maria, 1 Rob., 340; The Sarah, 3 Rob., 330; The Vriendschap, 4 Rob., 166; The Resolu. tion, 6 Rob., 13.
· The Adelaide, 3 Rob., 281 ; The Sally, 1 Gall., 401; The Grotius, 9 Cranch, 368; The Haabat, 6 Rob., 54; The Glierktiget, 6 Rob., 58; The Charlotte Caroline, 1 Dod., 192; The Maria, 1 Rob., 349.
the Supreme Court of the United States, that requires all such evidence abroad to be taken under a commission issued out of the court.
Such commissions, however, by a general rule of prize courts are never issued to be executed in the country of the enemy.
Upon the return of the farther proof allowed, if any such be taken, the cause is again heard in its order, upon the original and supplemental proof, and not again opened.
In the exercise of the duties of prize courts as Judicial orders the guardians of the public interest, they are fre. pendente lite. quently required to take some action with reference to the prize property, during the progress of the proceedings—such as the unlivery of the cargo, or its appraisal and sale, or the sale of the vessel.
The unlivery of the cargo often becomes necessary Unlivery of to ascertain its nature and quality, or to preserve it cargo. from injury or pillage, or because the ship stands in a position relative to the claim, altogether distinct from the cargo. In these cases, and others in which
. it may seem alike
proper, the court, on application, will order an unlivery of the cargo.?
Upon an order of unlivery of cargo, the court In what mandirects a commission to issue to the marshal or any competent person, to unlade the cargo, and to make a true and perfect inventory thereof; and at the
The London Packet, 2 Wheat., 371; The Magnus, 1 Rob., 31; The Diana, 2 Gall., 93.
? The Liverpool Packet, 1 Gall., 513; The Carl Walter, 4 Rob., 207; The Richmond, 5 Rob., 325; The Jonge Margaretha, 1 Rob., 189; The Oster Risoer, 4 Rob., 199; The Hoffnung, 6 Rob., 231; The Prosper, Edw., 62.
same time a commission is directed to some competent persons, who are required, upon oath, to appraise the cargo according to its true value; and where the object is to ascertain the nature and quality of the cargo, these persons are required to return an inventory thereof, with a certificate of the particulars, names, descriptions, and assortments of goods, with their marks and numbers, and the nature, use, quantities, and qualities thereof."
The court may also, in the exercise of its genship or cargo, or both. eral guardianship, order a removal of ship or cargo
or both, to another place or port; and in such case, a commission of removal is issued, directed either to the marshal, or to such other person as the court
may appoint. Expense of un- The expenses incident to the unlivery of the livery or removal, by cargo, or the removal of ship and cargo, being for whom borne. the benefit of all parties, are usually borne by
the prevailing party. If the captors apply for the unlivery, and the property is condemned, they bear the expense; but if restitution be decreed, the expense is generally made a charge upon the cargo—but this is always in the discretion of the court.
Order of sale
After the unlivery and appraisement, the court erty, and how sometimes orders a sale of the property, whether
a ship or cargo, and this is done where they are in
Marriott's Forms, 224. · Marriott's Forms, 234; The Rendsberg, 6 Rob., 142; The Sacra Familia, 5 Rob., 360.
* The Industrie, 5 Rob., 88.
in a perishing condition, or liable to deterioration pending the process."
This is done by a commission of appraisement and sale, issued to such competent persons as the court may appoint, directing them to choose appraisers, to appraise the same on oath, and thereafterward to expose the same to public sale, and bring the proceeds into the registry of the court. By the practice in the courts of the United States, a sale is sometimes ordered without a previous appraisement, but when appraised, the appraisers are always appointed by the court. In England, it is the practice of the court to allow the claimants to select one of the commissioners of appraisement and sale.? The expense of this proceeding is, in the first in- Expense of
sale, by whom stance, borne by the party applying for it, and ulti
defrayed. mately as the court may decree. In the United States, the sale itself is in all cases made by the marshal, and such is usually the case in England, but the court may direct it to be made by any
The regular practice of the prize court is to have a previous inventory and appraisement; and obvious reasons of public policy to check fraud and fix responsibility on the officers of the court, require an adherence to that rule.
The court, in the exercise of its discretionary Delivery of the power, after a hearing in the first instance, orders builto the capa delivery of the property on bail, either to cap- antes.
tors or claim.
· The St. Lawrence, 1 Gall., 467; The Frances, 1 Gall., 451 ; Jennings vs. Carson, 4 Cranch, 2; Stoddart vs. Read, 2 Dall., 40; The Copenhagen, 3 Rob., 178; Marriott's Forms, 237, 318.
: The Carl Walter, 4 Rob., 207, 211; The Rendsberg, 6 Rob.,