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tors or to the claimants, according to the circumstances as they are developed. We have seen in what cases the court will allow an application for such delivery to be made to the claimants, and in what cases to the captors.
The bail required in such cases, is a stipulation for the return of the property, or its full value, to abide the decree; and ordinarily, the court insti. tutes an inquiry into the value, and the order is made pursuant thereto. The sureties in such stipulation are responsible only for the amount of their stipulation; but the principal is holden for the value of the property, though it exceed the sum named in the stipulation. The delivery is usually made on bail, at an appraised value; in which case, both principal and sureties are bound in that sum and no farther.1
But their liability cannot be reduced on an application to diminish it to the sum which the
prop erty actually produced at a subsequent sale.
The expenses incident to a delivery on bail, are borne by the delivering party, unless the court otherwise direct, but usually the direction is, that the party who applies for the delivery on bail shall bear the expenses; and all subsequent expenses after its delivery are borne by the party receiving
the property. Stipulations Stipulations to answer adjudication, given in a and obiability prize court, are not regarded as mere personal secu
rities for the benefit of the parties, as such bonds
· The Alligator, 1 Gall., 145.
are viewed in the common law courts. They are considered securities given to the court itselfpledges or substitutes for the thing, in all points fairly in adjudication before the court. They are not discharged by lapse of time, but may be enforced by the court at any time, and although the stipulation be given to the captors, the bail may
be answerable in the admiralty to the government, if it should so result, from any circumstances, that the property is condemned to the government. But if, at the time of the capture and delivery on bail, the property was neutral, and by reason of the subsequent intervention of hostilities with the neutral power condemnation is made to the government, the stipulation would not in such case be enforced, because such an event was not in the contemplation of the parties when they entered into it. This is the English doctrine, but, although not passed upon by the courts of the United States, Judge Story seems to doubt its correctness: "For,” says he, “ the bail bond being a substitute for the property itself, there does not seem any very conclusive reason why it should not be subject to all the events which would have affected the property, if still in the custody of the court.”
On an appeal, the property follows the appeal Appeal from into the appellate court. In the United States, when an appeal is made to its effect on
the possession the Circuit from the District Court, the property or control of
the prize propinto the Circuit Court, and is no longer subject to the interlocutory orders of the District Court. It is not so, however, on an appeal from the Circuit Court to the Supreme Court of the United States,
for the decrees of the latter are always sent to the Circuit Court for execution, and therefore the property always remains in the latter court, notwithstanding the appeal.
FURTHER CONSIDERATION OF THE PRAC
TICE AND PROCEEDINGS OF PRIZE-
[The belligerent right of the United States to interdict all commerce with the insurgents, by a blockade of the ports in their occupation, has been maintained by its naval forces, in superaddition to its other duties, with a noiseless but incessant and efficient activity, and the large number of naval captures that have been made, of property employed in the violation, or attempted violation of this bel. ligerent right, have called into active exercise, for the past eighteen months, the prize jurisdiction of the federal courts of the country.
In the adjudications upon these captures, apart from the great questions of high political import which were considered and determined, many important subjects, connected with the practice and proceedings, in the administration of the law of maritime capture, have been authoritatively adjudged. A brief review of these discussions will make a proper and desirable supplement to the foregoing chapter.
THE DUTY OF CAPTORS.
The duty of The rule which declares it to be the duty of captors.
captors, as soon as possible after the completion of
the capture, to send the captured property into some As to the prop-convenient port, for adjudication, like all general erty captured.
rules, admits of exceptions, in extreme cases, either of physical necessity, or of overruling moral influ
ences. Exceptions to The exception arising out of physical necessity, quiring it to is illustrated by the cases where the property capbe sent in for tured is a long distance from any port of the cap
tor's country, is in a perishing condition, and either the captors have no means of sending it in, or if
they have, it is obvious that it would be of no Physical im- value on its arrival. In such
edly be sold, and the proceeds of the sale repre. senting the property, will become thereafter the res
on which the prize-court acts, in its adjudication. Exception So too, an overruling moral restraint, may pre arising from
sent a sufficient ground of relaxation of the rule which requires adjudication upon the property itself.
This occurred in the case of The British Empire, captured on the coast of Florida, near St. Augustine, which was in possession of the naval forces of the Government of the United States.
The cargo of the vessel consisted mainly of articles of household consumption, and the public authorities of the town, presented a petition to the com mander of the capturing vessel, representing in strong terms the famishing condition of the inhabitants of the town, for the want of many of the