The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1862-05-06

United States Circuit Court.

Before Hon. Judges Nelson and Smalley.
THE CASE OF THE BRITISH PRIZE BARK HIAwATHA.
AND HER CARGO, VALUED AT 5000 000-INPORT
ANT OPINION or THE UNITED STATES CIRCUIT
COURT AS TO THE POWERS OF THE PRIZE COMMIs
sIONERs AND THE DUTIES OF THE MARSHAL, ETC
MAY 5.-Thc United States Us. The Bark Hia,cama ond
her Cargo, taken as prize.
NELSON C. 1.-The vessel and cargo In this case have
heretofore been condemned in the District Court as
prize upon proceedings instituted by the United States
appeal taken to this court from that Decree which
was affirmed. Since then appeal has been takon e.
the Supreme Court from Tho latter Decree and which
now pending The cargo consists chiefly Of tobacco man
ufacured and unmanufactured and was laden board
the vessel at City Point Virginia, in May, 1901 the cap
ture occurred the same month in Hampton Roads aud
vessel and cargo brought into this port. Tho yes
sell with most Of the cargo is lying at the Atlantic deck
BROOKLYN Accodn to the report OF the prize comnis
sioners under date of April IA, 1862, supported by
proof, tho cargo is in perishing condition. and they
asked for an order Of sale for the benefit OF all
cerned. sale ordered accordingly, and some
steps taken under the order with view appraisal
OF cargo preliminary to the SALE The proceedings
afterwards said for tho purpose OF enabling the
proctor and advocate for the claimants TO make some
suggestions to the court in respect to the order OF ac
which have been submitted for its consideration II is
not denied but that the cargo is In pershable cond
tion and The Interference OF the court required with
view to its preservation, pending the litigation. The
value Of tho property involved is large aud the claimants
humorous, the documentary proofs show II is said
some thirty throe different bills oladg. No application
y
with the cargo by the court with Wow its
preservation. The application is exclusively the
part Of the government, and by the commissioners
acting for the benefit OF all persons parties concern
ed We satisfied upon the proofs before US that
immediate steps should be taken to preserve the
subject mator in dispute from loss and that il will
be FOR the interest Of all parties that the cargo shod be
sold The recent act OF Congress, passed March Is,
1852 provdos-Sec /. That IT shall be the duty OF the
prize commissioners 'sfrom time time pendn The adj
Indication examine into the condition Of the said pro.
perty and report to the court If the any part
- ktatar
vllue and n The same be 50 found b. the court upon said
report other evidence, the count may herepon order
nterocutory sale thereof by the United States Mar
sh and the deosit OF the gross proceeds Of such
the registry Of the court whether claim 10 said pro-
perty has or has not been interposed We inclined
TO think this provision applies As well TO the proceed
ngs in this court in the court below. We do sup.
nose IL intended interfere with any others Of the
usual modes in this the court below, for the dis
position or preservation Of the fund or subject mat
ter Of litigation pending the suit; but intended
10 provide for tho Of sale, which is Of the
modes, when that enc has been adopted by the court
This power Of the prize commissions, believe Is new
aud it may be proper 10 submit some observations
upon it, The power think is joint and requires the
concurrence OF both in the exercise Of it, AS matter OF
practice IL would be proper for them to give notice
The application the court for the sale TO tho District
Attorney representing the government and also 10 the
e. these PARTIES TO support or oppose the order Of SALE
Either OF then may still make an application 10 the
court in respect TO tho condition 0. the notwh.
standing this power OF the commissioners II wss OBJ
viously ecnieri cd upon them an additional security
for its preservation and Tor abundant caution. The
sale when ordered, is 70 be made by tho Marshal but
~ matter Of practice should be made under the sperin
ten and direction of tho commissioners. They re-
all PARTIES in interest and Is IL their duty
that Tho property not sacrificed at tho sale. The
tion they hold 20 the property Is not unlike that OF
private party in sales Of this description. The Marshal
. 10 receive tie purchase money, mako q pro-
per return or the sales, and pay the moneys
into the registry OF the court Tho act pro
vIjes thar the order Il sale shall contain an or
der TO pay gross proceeds The registry And the
second section that all reasonable and proper claims
AID charges or piloage, towase Wharfage storage in
sursncs and other expenses Incident to the bringing in
and custody and sale 81 the property captured az
prize shall be charge upon the same: and having been
audited and allowed by ths court, shall, In Ito event Of
costs, lie paid Out OF M = ANY sale Of The proper
~ tnsl or nterlocuis's .tUiy Of the court. Tho
gross proceeds Of TIL te paid iLto the registry
Of the court, and on t.. a,tipn and aNow.as &c Or
The charges &c. BY thee tscy may be raid. II may
be propsf 20 say in advance dat where these charges
txcd Dy law, they viii b. strictly regulated accord
ingly and whore not Fixed by law the allowance viii in
exceed tho usual accustomed charge In similar
arising out Of navigation and trade. We suppoge
that the charges of plotgc tovnEc wharfage storage
and III other Incidental necessary expenses, either
exed BY law or ~ custom and usage Or have some def
Mite limit or regulation by the course Of trade and
business Tho Marshal having the possession aud
custody u the vessel and cargo subject TO the direction
aud control Of the court he WA be held responsible for
.s due care; fer placing and securing Tie vessel at
pro deck, and when the cargo is ordered 70 be dis
charged, Tor selsc'nga IL ard suitable warehouse for
the storage and custody Of il Afterwards Where ap
prassl Of the goods is orersd 10 DO made by the COM
fnissioners before sale, he will discharge the cargo
unser their sunor endcnce as TO enable them
taSo lst OF Il with view 10 the appraisal and he will
also be enabled 10 lake list for his own benefit with
view to the We think discbargiDg the cargo lhs
PARCELS Of each b OF fading should be separated sp-
PRAISED aud sold separately so thai each claimant msy
be advised Of his distinct interest involved in the ga
ton. We shall affirm the order Of sale heretofore made
but the sale Is 10 take place the mode and inner
more fully stated Ia this opinion, and the stay Of pro-
ceedngs discharged.
Coun Ell for the government, Mr. 9. L. woodford; for
Ga lnauts, Mr.. Charles Edwards.