4. APPEALS.

$1235.

In admiralty an appeal suspends a sentence of condemnation altogether, and if, pending the appeal, the law under which the sentence was pronounced be repealed, no sentence of condemnation can be pronounced except under special provision of statute.

Yeaton v. United States (1809), 5 Cranch, 281.

The Supreme Court of the United States will not entertain a new claim of persons to share as captors in property condemned as prize, but will remand the cause to the circuit court, where the claim must be made.

The Societe (1815), 9 Cranch, 209.

As to appeals in prize cases, see Revised Statutes, secs. 695, 1006, and 1009. (Mr. Day, Sec. of State, to Mr. Camben, French amb., Aug. 23, 1898, For. Rel. 1898, 806.)

By the fourth article of the treaty with France, of 1800, it was provided that "property captured, and not yet definitely condemned shall be mutually restored." It was held that a decree of condemnation by a circuit court, from which an appeal had been taken to the Supreme Court, was not a definitive condemnation within. the meaning of the treaty.

United States v. Schooner Peggy, 1 Cranch, 103.

Where a vessel has been lawfully condemned and sold as prize of war, the reversal of the decree of condemnation by a higher court does not disturb the title and rights of the purchasers, but only operates upon the fund produced by the sale of the vessel.

Griggs, At. Gen., Feb. 17, 1900, 23 Op. 29.

5. SALE OF CAPTURED PROPERTY.

$1236.

It is reasonable, as applicable to all nations, to permit a portion of a prize cargo to be sold under the superintendence of our public officers, for the necessary reparation of the prize ship. As to France, it is within the nineteenth article of the treaty of 1778.

The prize ship should be permitted to sail whenever the captors wish, and a deception practiced on the revenue officers, as to the goods, affords no ground for detaining it.

Lee, At. Gen., 1796, 1 Op. 67.

Certain goods, captured by an American privateer, were, with the consent of a neutral claimant, sold under an order of court. Subsequently the neutral's title having been proved, the proceeds were ordered to be paid to him without payment of duties. On appeal, Story, J., delivering the opinion of the court, said: "Where goods are brought by superior force, or by inevitable necessity, into the United States, they are not deemed to be so imported, in the sense of the law, as necessarily to attach the right to duties. If, however, such goods are afterwards sold or consumed in the country, or incorporated into the general mass of its property, they become retroactively liable to the payment of duties. In the present case, if the goods had been specifically restored, and afterwards withdrawn from the United States by the claimants, they would have been exempt from duties. But having been sold, by order of the court, for the general benefit, the duties indissolubly attached, and ought to have been deducted from the proceeds by the courts below. The decree in this respect must be reversed."

The Concord (1815), 9 Cranch, 387.
See, also, The Nereide, 1 Wheat. 171.

Certain goods captured as prize were sold, before condemnation, under an order of court to which the claimant assented, with a reservation of all his rights. Under the prize act of June 26, 1812, and that of August 2, 1813, a deduction of 33 per cent was allowed on "all goods captured from the enemy, and made good and lawful prize of war, etc., and brought into the United States." Held, that this did not apply to goods like those in question, which, though sold, were ultimately ordered to be restored; but that the goods so sold were chargeable with the same rate of duties as goods imported in foreign bottoms.

The Nereide (1816), 1 Wheat. 171. Marshall, Ch. J., delivering the opinion, referred to the case of the Concord.

Section 2 of the prize act of 1863 (12 Stat. 759) authorizing the taking by the Government of any captured property and the deposit of its value in the Treasury, subject to the jurisdiction of the prize court in which proceedings may be instituted for the condemnation of the property, is a valid exercise of the power of Congress to make rules concerning captures. This provision is not in conflict with the public law of war, and does not impair the just rights of neutrals.

Bates, At. Gen., 1863, 10 Op. 519. See the case of The Nuestra Señora de
Regla (1882), 108 U. S. 92, 103.

"24. The title to property seized as prize changes only by the decision rendered by the prize court. But if the vessel itself, or its cargo, is needed for immediate public use, it may be converted to

such use, a careful inventory and appraisal being made by impartial persons and certified to the prize court."

Instructions to United States Blockading Vessels and Cruisers, General
Orders, No. 492, June 20, 1898, For. Rel. 1898, 782.

V. EVIDENCE.

1. COMPETENCY AND WEIGHT.

§ 1237.

The ship's papers are prima facie evidence of property; and "bills of lading, letters of correspondence, and all other papers on board which relate to the ship or cargo are also considered as prima facie evidence of the facts they speak, because such papers naturally accompany such a mercantile transaction."

Case of The Resolution, Federal Court of Appeals (1781), 2 Dallas, 19, 23. The master of a captured vessel, by the usage of admiralty, is a competent witness.

Bradford, At. Gen., 1794, 1 Op. 40.

The record of a court of admiralty, though always evidence to prove a condemnation, is, in cases between the insurer and insured, evidence, according to the general rule, only to prove the cause of condemnation. But where the record was read to the jury without opposition, and the party producing it therefore did not resort to other modes of proof which, if opposition had been made, he might have adopted, it was held to be admissible as proof of facts so far as it exhibited documents which, if produced to the court, would be evidence in the cause.

Russel v. Union Insurance Co., U. S. Circuit Court, Pennsylvania District (1806), 4 Dallas, 421.

A certificate of the proceedings of a court under the private seal of a person who styles himself secretary of state for foreign affairs is not evidence.

Church v. Hubbart (1804), 2 Cranch, 187, 238.

Copies of the proceedings in the vice-admiralty court in Jamaica are admissible as evidence when certified under the seal of the court by the deputy registrar, who is certified by the judge of the court, who is certified by a notary public.

Yeaton v. Fry (1809), 5 Cranch, 335.

In a case under the nonimportation act of March 1, 1809, it was held that the fact that a person was a seaman on a gunboat in a certain harbor, and liable to be ordered to some other place, so as to be unable to attend the court at the time of its sitting, was not a sufficient reason for taking his deposition de bene esse under the judiciary act of 1789.

The Samuel (1816), 1 Wheat. 9.

The legality of captures is to be decided upon competent evidence, and no rules are more proper for determining the competency of evidence than those which prevail in courts of admiralty.

Bradford, At. Gen. 1794, 1 Op. 40.

The sentence of condemnation of a foreign prize court is evidence merely of its own correctness," and does not establish "any particular fact, without which the sentence would have been rightly pronounced." Hence it does not negative the averment of the neutral ownership of the property condemned, since a neutral vessel may so act as to forfeit her neutral character.

Maley v. Shattuck (1806), 3 Cranch, 458.

In order to prove a foreign condemnation, it is necessary to produce only the libel and sentence. It is a frequent but useless practice to read the proceedings at length; the depositions in such proceedings are not evidence in an action upon a policy of insurance. Marine Ins. Co. v. Hodgson (1810), 6 Cranch, 206.

A bill of lading is not conclusive evidence of property.
Maryland Ins. Co. v. Ruden's Admr. (1810), 6 Cranch, 338.

The forfeiture of a vessel as a prize for attempting to run a blockade should not be made on evidence which consists of suspicious circumstances merely, although they make probable cause for capture of the ship and justification of her captors. Decree (D. C. 1898) 89 Fed. Rep. 510, reversed.

The Newfoundland (1900), 176 U. S. 97.

2. BURDEN OF PROOF.

§ 1238.

The burden of proof in prize cases rests upon the captors.

Case of The Resolution, Federal Court of Appeals (1781), 2 Dall.. 19.

"Peace and friendship must always be presumed to subsist among nations; and therefore he who founds a claim upon the rights of

war, must prove that the peace was broken by some national hostility, and war commenced."

Case of The Resolution, Federal Court of Appeals (1781), 2 Dall., 1, 3.

In general the circumstances of goods being found on board an enemy's ship raises a presumption that they are enemy's property.

The London Packet, 5 Wheat. 132.

The onus probandi of a neutral interest rests on the claimant; but the evidence to acquit or condemn shall, in the first instance, come from the ship's papers and persons on board. If the neutrality of the property is not established finally beyond a reasonable doubt, condemnation ensues. The assertion of a false claim, in whole or in part, by an agent of, or in connivance with, the real owners, leads to condemnation.

The Amiable Isabella, 6 Wheat. 1, 78.

When a vessel is liable to condemnation the first presumption is that the cargo is in the same situation.

The Sally Magee, 3 Wall. 451.

Presumptions of ownership in a neutral, arising from registry or other documents, may be rebutted by circumstances.

The Bermuda, 3 Wall. 514.

In proceedings against a ship and cargo as prize of war, the burden of proving neutral ownership is on the claimants; and when there is no proof of such ownership, and still more when the weight of evidence is on the side of enemy ownership, condemnation will be pronounced.

The Jenny, 5 Wall. 183.

The burden of proving neutral ownership of a vessel in a prize case is on the claimants.

The Benito Estenger, 176 U. S. 568.

VI. CONDEMNATION.

1. NECESSITY OF.

§ 1239.

"As between the belligerents, the capture undoubtedly produces a complete dives[ti]ture of property. Nothing remains to the original proprietor but a mere scintilla juris, the spes recuperandi. The modern and enlightened practice of nations has subjected all such