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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 filel, accomppanied 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
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.
3 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 reg.
istry not ex. ties to shape their claims to suit the case as estab- aminable until lished, might lead to very great abuses. Where, at
naot ohut Wim after claim and 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, and 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 di. " rectly antagonistic to the ship's papers and the preparatory examination can be admitted. This, how. fuver, applies to cases arising during, and not prior to, the war. 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. • Im 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, al. though an appeal be interposed, the applicatiou 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 consider: ation, by the court, of an application for delivery of the property on bail. And such an application is alway's 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 le spect to evidence to prevail in proceedings which
have no analogy to those at common law."9 Efect of de- If, upon the hearing, a decree of condemnation be cree of condemnation 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 C., 348; The Diana, 2 Gall., 164; Pratt's Story, 69.
In prize courts, as in all other judicial tribunals, Presumptions
of law in prizethere are certain legal presumptions which affect courts. the parties, and are regarded as of general application. Thus, possession is considered as prima evidence of property; and thus, the title to property captured, is presumed to be in the enemy, in the absence of all evidence to establish any proprietary interest. And so, too, goods found in an enemy's And the bur
den of proof ship, are presumed to be enemy's property, unless resulting accompanying them there be documentary proof of a distinct neutral character:: Where property falls within the character of contraband, it is presumed not to be the product of the claimant's own country, which exempts it from seizure, unless that fact be proved by the claimant.
A merchant transacting business as such, is presumed to be doing so on his own account; but if the person acting be not a merchant, that may give a qualified character to his acts.
Where a ship has been captured and carried into the port of an enemy, and is subsequently found in the possession of a neutral, the presumption is, that there has been a regular condemnation and sale, and it is incumbent on the party claiming the property from the neutral possession, to prove the contrary.“
Where, by the provisions of a treaty, persons happening to be settled in a ceded port, are to remove
Miller vs. The Resolution, 2 Dall., 19. ? The Mannus, 1 Rob., 31.
3 Loccenius, Lib. II., c. ii., n. 4; Gros de Jur. Bel. et Pac., Lib. III., c. vi., $ 6.
4 The Twee Juffrowen, 4 Rob., 242.
therefrom, the presumption is in their favor, and must be rebutted by proof that they did not intend to remove."
The testimony of the master of the captured veswel as to her destination, and also as to the alleged treatment of the crew, is held conclusive upon these points, if it be not contradicted or fairly discred. ited.?
The national The national character of the captured property character of prize property is, in the large majority of cases, the principal ques.
lis. tion discussed on the hearing. The determination cussed on the of this question depends upon many and various hearing
circumstances, such as the habits and trade of the ship, the nature of the voyage and cargo, the legal or illegal conduct of the parties, and upon the national domicil of the asserted proprietor, or the nature of the title by virtue of which he claims. These several insignia of hostility of character have already been fully considered in the chapter treating of that subject. In this connection it will be sufficient simply to refer to the leading principles, and to the decisions of the prize courts by which they have been established. In all cases of condemnation, whatever be the fact, by intendment of law the property is deemed enemy's property, and is eo nomine condemned.
In the determination of the question of enemy or
? The Diana, 5 Rob., 60.
3 The Elsebe, 5 Rob., 173; The Nelly, 1 Rob., 219; The