2.

As soon as the captors have brought the property in for adjudication, and the preparatory examinations are taken, the captors, and if they neglect or refuse, the claimants, apply to the proper court for adjudication. In either case the property is immediately taken into the custody of the court; for in all proceedings in rem, the court has a right to the custody of the thing in controversy; and as soon as libelled, it is always deemed in the custody of the law. (Jennings v. Carson, 4 Cranch, Home v. Camden, 2 H. Bl. 533.) In the United States, a warrant immediately goes to the marshal to take possession of the property; and he is bound to keep it salva et arcta custodiâ ; and if any loss happens by his negligence, he is responsible for it to the court. In England, though the property is now usually put into the hands of the captors, yet it still remains, in contemplation of law, in the custody of the public. Formerly it actually did remain in its custody, as is still the case in other foreign countries. It is merely for the convenience of the captors that the English admiralty permits them to take possession of the property. But it must be remembered, that it is so held by them as agents of the court, and not in right of property; and therefore, their possession may be devested by the act of the court, either ex officio, or on the application of the parties interested, showing good cause for taking it out of their hands. (Per Sir W Scott, arguendo, in Smart v. Wolff, 3 Term Rep. 323. 329. The Herkimer, Stewart, 128. S. C., 2 Hall's Am. Law Journ. 133.) And the property still remains in the custody of the court, notwithstanding an unlivery and deposit in public. warehouses. (The Maria, 4 Rob. 348.) In fact, in England, where the property is so unlivered, if it has been captured by a public or private commissioned vessel, it is, de facto, under the joint locks of the government and the captors, although in the legal possession of the marshal under the tenor of his writ for unlivery; and if captured by a non-commissioned vessel, it is a droit, where the king, in his office of admiralty being the captor, it is under his locks alone. (The Rendsberg, 6 Rob. 142. 174.) In the United States, the marshal holds the custody at all times for the court; and the latter is the guardian of the public rights and revenue, as well as of the rights of the captors VOL. H.

3

course.

and claimants in all cases of prize. It is, indeed, usual and proper for the collector of the customs to keep an officer on board for the protection of the revenue, until the duties are duly secured, which the captors may secure, if they please; but since it cannot be ascertained until a decree of condemnation whether the property be good prize or not, many cases may occur in which it would be highly inconvenient for them to adopt this If the property be restored specifically, and exported from the country by the claimants, it is held not liable to duties; and if sold under an interlocutory order of sale it is the duty of the court to reserve out of the proceeds the amount of duties which then attach upon it, and direct them to be paid over to the collector. (The Concord, 9 Crunch, 387. The Nereide, ante, vol. I. p. 171.) It is true that the prize act of last war, (act of the 26th June, 1812, ch. 107., sec. 14.,) seems to contemplate that the duties may be paid or secured in prize cases, in the same manner as goods ordinarily imported. But this clause is in terms applied only to goods of British growth, produce, or manufacture, or imported from British ports; and is, at all events, inapplicable to cases where it cannot be ascertained whether the goods are imported or not, until after a judicial decision. And the subsequent act of the 27th January, 1813. ch. 155., manifestly contemplates, that the payment of the duties is, in cases of condemnation, to be made by the marshal, out of the proceeds of prize sales. And it has been repeatedly held in the circuit court for the first circuit, that no forfeiture accrued for not securing the duties upon prize goods before condemnation; and that the court might, at any time, direct an unlivery and sale; and upon such sale, would deduct the amount of duties, and direct them to be paid to the collector.

It has already been stated, that when the marshal has posses sion of the property he is bound for safe and fair custody; and if any loss be sustained, it is at least his duty to be prepared to show that it was not lost by any default of his. (The Hoop, 4 Rob. 145.) If, therefore, property be pillaged while under his care, the court will hold him responsible for its value, if it arose. from his negligence. If, indeed, upon an application to enforce their responsibility, he by his answer deny any negligence.

and loose custody, the court may, perhaps, think it no more than a legal and proper confidence in its own officer to throw the burden of proof of culpable negligence or fraud on the other party. (The Rendsberg, 6 Rob. 142. 157.) And where the property is lost while actually under the locks of the government, the marshal will not be liable, although he may still be considered as constructively having the legal custody. (Ib.)

In prize causes it is not usual to file any special allegation of the particular circumstances on which the captors found their title to condemnation. The libel is, and always ought to be, the mere general allegation of prize, such as is used in undoubted cases of hostile property. The act of bringing the vessel in, and proceeding against her, allege her generally to be a subject of prize rights, and the captors are not called upon to state, at the commencement of the suit, the particular grounds on which they contend she is so. They have a right to institute the inquiry, and take the chance of the benefit of any fact that may be produced in the course of that inquiry. (The Adeline, 9 Cranch, The Fortuna, 1 Dodson, 81.). This is a great advantage on the side of the captors, but is controlled by their liability to costs and damages, if the inquiry produce nothing; and is fully balanced by the advantage given to the claimant in this species of proceeding, that no evidence shall be admitted against him but such as proceeds from himself, from his own documents, and from his own witnesses, the captors not being permitted, except in cases marked by peculiar circumstances, to furnish any evidence whatever. ('The Fortuna, 1 Dodson, 81.) Considerations of this nature render it very important for proctors to adhere, with the greatest care, to the established form; and it is a great irregularity, equally evincing want of skill and judgment, to deviate from it.

Upon filing the libel the usual practice is immediately to issue a monition citing all persons who are interested to appear at a given day, and show cause why the property should not be condemned as prize; and this process, in the United States,

usually includes a warrant to take possession of the property. But where the prize has been first seized in port, a monition issues, in the first instance, to bring in the papers if they are in the possession of a subject or citizen. (The Conqueror, 2 Rob. 303) The usual monition is directed to the marshal, and in England is served by posting up a copy at the Royal Exchange, in the city of London. In former times fourteen days were allowed between the service of the monition and the day of hear ing the cause; but in most of the later prize acts in England twenty days are allowed after the execution of the monition. (Robinson's Coll. Mar. 89. Note. Mariott's Formulary, 187.) In the United States the return day of the monition depends upon the discretion of the district judge; but it is usually twenty days at least after the issuing of the process; and it is served usually by posting up a copy on the mast of the prize vessel, and at such other public places as the judge may direct; and also by publication in the newspapers printed in or near the principal place or port of the district into which the prize is brought. This proceeding by monition and service by public notice is borrowed from the Roman law, by which, when it became impracticable to serve the party with a personal citation, recourse was had to this method, which is called a citation per edictum. (Dig. Lib. 5. tit. 1. sec. 68. Robinson's Coll. Mar, 88. note.)

At the return day of the process, if no claim be at that time or previously interposed, and upon proclamation made no person appear to claim, the default is entered on the record; and the court will then proceed to examine the evidence, and if proof of enemy's property clearly appear, it will immediately decree condemnation; if the case appear doubtful it will postpone a decision. It is not now usual to condemn goods for want of a claim till a year and a day has elapsed after the ser vice of the process, except in cases where there is a strong presumption and reasonable evidence to show that the property belongs to an enemy. (Rob. Coll. Mar. 89. The Harrison,

ante, vol. I. p. 298. The Staat Embden, 1 Rob. 26. 29.) And if no claim be interposed within that period, the property is condemned of course, and the question of former ownership is precluded for ever, the owner being deemed in law to have abandoned it. (The Staat Embden, 1 Rob. 26. 29. The Henrick and Maria, 4 Rob. 43, 44. The Harrison, ante, vol. 1. p. Rob. Coll. Mar. 89., note. The Avery, 2 Gallis.)

298.

If at or before the return day of the process a claim is interposed, the cause is then to be heard in its proper order upon the ship's papers and the preparatory examinations. Accompanying every claim must be an affidavit which is called the test affidavit, and which regularly should state that the property at the time of shipment. and also at the time of capture, did belong, and will, if restored, belong to the claimant; and if there be any special circumstances in the case these should be added. (The Adeline, 9 Cranch, 244. Vide The Sally, 3 Rob. 300. note.) In respect to the manner of interposing claims, and the rules by which their admission or rejection are governed, it does not seem necessary to do much more than refer the reader to what is said on that subject in the appendix to the preceding volume, (Ante, p. 500.,) and the case of the Adeline, (9 Cranch, 244. 286.) It may, however, be added, that a party to be entitled to assert a claim in the prize court must be the general owner of the property; for a person who has a mere lien on the property for a debt due, whether liquidated or unliquidated, is not so entitled. (The Eenroom, 2 Rob. i. 5. The Tobago, 5 Rob 218. The Frances, Thompson's claim, 8 Cranch, 335. Id. rvin's claim, 8 Cranch, 418. The Marianna, 6 Rob. 24.) And the same rule has been applied to a mortgage where the mortgagor is left in possession. (Bolch v. Darrel, Bee, 74.) The rule that a claimant is not admitted to claim, who is engaged in a traffick prohibited by the municipal laws of the country, is applied only to citizens or subjects, and not to foreign neutral proprietors. (The Recovery, 6 Rob. 341.) But to citizens or subjects the rule equally applies, whether the transaction. is between original contractors or under a sub-contract. (The Cornelius and Maria, 5 Rob. 28.) And an inactive or sleeping partner cannot receive restitution in a transaction in which he