already in the record." 1 Mr. Conkling, on the other hand, contends that the 30th section of the judiciary act, enjoining the examination of witnesses in open court, applies equally to cases in the circuit as in the district courts, and cites the remainder of the section, which he says precludes the possibility of a doubt of the fact. This section is as follows: "In the trial of any cause of admiralty or maritime jurisdiction in a district court, the decree in which may be appealed from, if either party shall suggest to, and satisfy the court that probably it will not be in his power to produce the witnesses there testifying before the circuit court, should an appeal be had, and shall move that their testimony be taken down in writing, it shall be so done by the clerk of the court. And if an appeal be had, such testimony may be used on the trial of the same, if it shall appear to the satisfaction of the court which shall try the appeal, that the witnesses are then dead or gone out of the United States, or to a greater distance than as aforesaid from the place where the court is sitting, or that by reason of age, sickness, bodily infirmity, or imprisonment, they are unable to travel and appear at court, but not otherwise."2 But we hardly think this meets the objection of Mr. Justice Story. The question is not so much the import of the act of 1789, as it is the effect of the act of 1803. The section above cited by Mr. Conkling makes no provisions for reducing the evidence in the circuit court to writing, which must be in that state in order that the act of 1803 may be complied with. In 1846, a rule was adopted by the circuit court for the first circuit, which provides that "in all causes in admiralty the testimony shall be in writing, unless for special cause shown, the court shall allow witnesses to be examined orally upon the stand."

And it is now provided by the fifty-second admiralty rule, that further proof taken in a circuit court upon an admiralty appeal,

1 The Sch. Boston, 1 Sumner,,328, 332.

21 U. S. Stats. at Large, 89.

8 In Conn v. Penn, 5 Wheat. 424, the question arose as to the proper manner of taking evidence in an equity suit in the supreme court. The extent to which the act of 1803 overrules the preceding acts was not decided, the court stating that they felt considerable doubts on the subject, but it was held that all the testimony on which the judge in the court below founded his opinion must be before the court and appear on the record, and the evidence having been taken orally in the court below, the cause was remanded for further proceedings.

13 How. In The Enterprise, 2 Curtis, C. C. 317, 321, Mr. Justice Curtis,

shall be by deposition taken before a commissioner, or before some officer authorized to take depositions by the thirtieth section of the act of congress of 1789, upon an oral examination and cross-examination, unless the court or one of the judges shall allow upon motion a commission to issue upon written interrogatories and cross-interrogatories. And the rule also provides that when oral evidence is taken down by the clerk of the district court, and is transmitted to the circuit court, it may be there used in evidence, saving to either party the right to take the deposition of the party if he should so elect.

The act of 1803, ch. 40,1 provides that on the hearing of an appeal in the supreme court no new evidence shall be received, except in admiralty and prize causes.2 The manner of taking such evidence is pointed out by the twelfth general rule of the supreme court which we give in our note.3

The court has the power, when it is deemed expedient, to refer any matters arising in the progress of the suit, to one or more commissioners to hear the parties, and make report thereon.* And in such a case the report will not be disturbed, unless it is shown to be affirmatively in the wrong.5

said: "In the suit in rem, numerous technical objections were taken to the admissibility of the depositions sent up to this court from the district court. I consider these depositions to have been taken as further proof under the rule of the supreme court on that subject."

1 2 U. S. Stats. at Large, 244.

2 See Hawthorne v. The United States, 7 Cranch, 107; The Brig James Wells v. The United States, 7 Cranch, 22.

8 "1. In all cases where further proof is ordered by the court, the depositions which shall be taken, shall be by a commission to be issued from this court, or from any circuit court of the United States. 2. In all cases of admiralty and maritime jurisdiction, wwhere new evidence shall be admissible in this court, the evidence by testimony of witnesses shall be taken under a commission to be issued from this court, or from any circuit court of the United States, under the direction of any judge thereof; and no such commission shall issue but upon interrogatories to be filed by the party applying for the commission, and notice to the opposite party or his agent or attorney, accompanied with a copy of the interrogatories so filed, to file cross-interrogatories within twenty days from the service of such notice: Provided, however, that nothing in this rule shall prevent any party from giving oral testimony in open court in cases where, by law, it is admissible." 21 How. This rule is the same as the old 25th and 27th general rules. In the Massachusetts district the practice for many years prior to this rule was, for the clerk to issue a commission as a matter of course, on written interrogatories and cross-interrogatories being filed.

444th Admiralty Rule.

5 Taber v. Jenny, U. S. D. C., Mass., 19 Law Reporter, 27.

SECTION III.

OF PRIZE CAUSES.

It may be necessary to speak of the rules and practice of admiralty peculiar to prize causes.1 The duty of the master of the capturing ship in relation to the documents on board the prize is pointed out by statute.2 And he should make affidavit that he has complied with its requirements. The master of the prize, and principal officers, and some of the crew should be brought in; and the persons on board the prize are in the first place examined on the standing interrogatories prepared by the court for such purposes. Only those persons on board the prize, and others introduced by special order of the court, are examined. This examination should take place without delay, and the commissioners must see that the inquiries are properly put and answered with all the minuteness of detail that is necessary to procure a full, explicit, and substantial answer to every question.

And no counsel are permitted to be present;

1 See the elaborate essays of Mr. Justice Story on this subject in 1 Wheat. App. 494, and 2 Wheat. App. 1.

2 Act of 1800, ch. 33, art. 7, 2 U. S. Stats. at Large, 46. This provides that he "shall carefully preserve all the papers and writings found on board, and transmit the whole of the originals unmutilated to the judge of the district to which such prize is ordered to proceed, and shall transmit to the navy department, and to the agent appointed to pay the prize-money, complete lists of the officers and men entitled to a share of the capture, inserting therein the quality of every person rating, on pain of forfeiting his whole share of the prize-money resulting from such capture, and suffering such further punishment as a court-martial shall adjudge." See also, Act of 1813, ch. 13, 2 U. S. Stats. at Large, 792.

3 In 1 Wheat. App. 496, it is said that the prize master should "make an affidavit that the papers are delivered up as taken, without fraud, addition, subduction, or embezzlement."

4 1 Wheat. App. 496.

5 The English standing interrogatories may be found in 1 Rob. Adm. 381. The American in 2 Wheat. App. 81. In the Southern District of New York, there are distinct prize rules which may be found in Dunlap's Adm. Practice, 2d Ed., 368.

The Eliza & Katy, 6 Rob. Adm. 185, 189; The Henrick & Maria, 4 Rob. Adm. 43, 57; The Haabet, 6 Rob. Adm. 54.

7 The Ann Green, 1 Gallis. 274, 284.

but it is the duty of the commissioners to superintend the regularity of the proceeding, and to protect the witnesses from surprise, or misrepresentation, and after the deposition is taken, each sheet is read over to the witness, and separately signed by him. The witnesses are examined apart from each other, and successively, before the depositions are closed and sent to the court, for after this is done, the commissioners cannot take further evidence without a special order.2 And in one case where, two days after the vessel came into port, a person representing himself to be the supercargo, went before the commissioners and offered papers in his possession, in behalf of the claimants, the commissioners refused to examine him and were sustained by the court. And only the papers and documents delivered up to the captors are admissible, and if the captured conceal any, they cannot afterwards put them in. The case is determined only on this evidence and the documents of the prize, unless the court admit something more for good reason; and they do this very reluctantly. If, however, the case demands it, they will require further proof, from either party alone, or from both.

1 The Apollo, 5 Rob. Adm. 286.

2 The Speculation, 2 Rob. Adm. 293.

3 The Anna, 1 Rob. Adm. 331.

4 The Ann Green, 1 Gallis. 274.

5 The Dos Hermanos, 2 Wheat. 76; The Ann Green, 1 Gallis. 274, 281.

6 In The Dos Hermanos, 2 Wheat. 76, Mr. Justice Story said: Farther proof is not a matter of course. It is granted in cases of honest mistake or ignorance, or to clear away any doubts or defects consistent with good faith. But if the parties have been guilty of gross fraud or misconduct, or illegality, farther proof is not allowed; and under such circumstances, the parties are visited with all the fatal consequences of an original hostile character." Where there is a repugnance between the documents and the depositions, the conviction of the court need not be kept in equilibrio till it can receive further proof. The Vigilantia, 1 Rob. Adm. 1, 7. Further proof has been allowed where the suspicion or doubt was caused by extrinsic evidence. The Romeo, 6 Rob. Adm. 351. But this is certainly pressing the point very far. A summary of the English cases where further proof was allowed, and which was written by Mr. Justice Story, may be found in the appendix to the first volume of Wheaton, p. 504. See also, The London Packet, 2 Wheat. 371; The Pizarro, id. 227; The Frances, 8 Cranch, 348; The Grotius, id. 456; The Adeline, 9 Cranch, 244; The Mary, 8 Cranch, 388; The Venus, 1 Wheat. 112; The Fortuna, 2 Wheat. 161, 3 Wheat. 236; The Friendschaft, 3 Wheat. 14; The Atalanta, 3 Wheat. 409, 5 Wheat. 433; The St. Lawrence, 8 Cranch, 434; The Dos Hermanos, 2 Wheat. 76; The Hazard v. Campbell, 9 Cranch, 205; The Anne, 3 Wheat. 435; La Nereyda, 8 Wheat. 108; The Amiable Isabella, 6 Wheat. 1.

Here, oral testimony is never admitted, but it must be taken and reduced to writing under an order of court.1

It must however be remembered, "that the property subjected to the prize jurisdiction is itself, in the first instance, a part of the necessary evidence in the cause, upon which acquittal or condemnation must go, and that the court will, upon laying a proper foundation, direct a survey, in order to ascertain its nature and character." 2

Although the evidence of the captors is not allowed,3 yet papers from other causes, and papers found on board other ships, are sometimes permitted, and, in the language of Mr. Justice Story, "in other instances of pregnant suspicion, or reasonable doubt, the courts will not suffer a rule, founded upon the mere convenience of practice, to exclude the captors from the benefit of diligent inquiries."4 But on an application for further proof, the court refused to allow the captors to put in a letter which had been taken from the vessel previous to her capture by another vessel.5

In cases of joint and collusive capture, the usual simplicity of prize proceedings is necessarily departed from, and where there is the least doubt, other evidence than that arising from the captured vessel, or invoked from other prize causes, may be resorted to.6

In causes of prize, the ownership is a fact of great and decisive importance; and of this the bill of sale-a document in universal use- is almost conclusive evidence.7

The principal grounds for condemning a ship as prize, where

1 The Dos Hermanos, 2 Wheat. 76. See ante, p. 724, n. 4.

2 The Liverpool Packet, 1 Gallis. 513, 520.

3 The Sarah, 3 Rob. Adm. 330.

The Ann Green, 1 Gallis. 274, 282. See also, The Vriendschap, 4 Rob. Adm. 166; The Romeo, 6 Rob. Adm. 351. But see Dearle v. Southwell, 2 Lee, 93, where it was doubted whether proceedings could be invocated except where the cause was between the same parties or on the same point. In The Experiment, 4 Wheat. 84, it was held that depositions taken in one prize cause as further proof were not admissible in another prize cause, but the rule was said to be that original evidence taken on the standing interrogatories was.

5 The Sarah, 3 Rob. Adm. 330.

6 The George, 1 Wheat. 408.

7 The Vigilantia, 1 Rob. Adm. 1; The Sisters, 5 id. 155; The San Jose Indiano, 2 Gallis. 268, 284.