432

NAMES OF ADDITIONAL REFERENCES.

carried, from necessity and distress, into another port than that of outfit or departure; to wit, Plymouth instead of Hull. But the court refused to pronounce for the forfeiture of the bond, upon the ground that the vessel having returned within the jurisdiction of the court, she was substantially returned to the legal possession of the owners, thus practically restoring them to their original situation.

Other English Admiralty cases may be referred to; such as The Thomas, 1 Ch. Rob. 322; The Guardian, 3 ibid. 93; The Aurora, ibid. 133; The Cosmopolite, ibid. 333; The Sisters, 4 ibid. 275; The Countess of Lauderdale, ibid. 283; The New Draper, ibid. 290; The Martin of Norfolk, ibid. 297; The Peggy, ibid. 304; The Victoria, Edw. 97; The Fanny and Elmira, ibid. 117; The Johan and Siegmund, ibid. 242; The See Reuter, 1 Dods. 23; The Warrior, 2 ibid. 288; The Partridge, 1 Hagg. 81; The John of London, ibid. 242; The Pitt, ibid. 245; The Egyptienne, ibid. 346 n.; The Fruit Preserver, 2 Hagg. 181; The Lagan, 3 ibid. 418; The Valiant, 1 W. Rob. 67; The Lusitano, ibid. 166; The Elizabeth and Jane, ibid. 275; The John Dunn, ibid. 161; 25 Eng. L. & Eq. 592, The Virtu; Lush. 28, The Tamarac; Swab. 160, The Empress; ibid. 408, The Victoria; 2 Spinks 30, The Graff Arthur Bernstorff; Br. & Lush. 65, The Idas; ibid. 161, The Corner; 1 Ad. & Eccl. Rep. 72, The Innisfallen; ibid. 45, The Flora; ibid. 77, The Meggie; ibid. 314, The Cathcart.

From these cases it may be gathered, that two distinct remedies are possible for co owners: one is to secure justice to the majority; the other, to protect the minority. Upon any casual disagreement about the employment of a ship, each has its respective remedy :

REMEDY OF CO-OWNERS COMPLETE IN COURT.

433

for the majority, a resort to a cause of possession is open; for the minority, to a cause of restraint.

The Virtu (supra) was a cause of possession, whereas the Innisfallen (supra) was a cause of restraint; in the Victoria (supra) it was a question of legal and equitable title; and in the Cathcart (supra) of unlawful arrest.

By law, therefore, co-owners may apply to the courts for judicial protection. An obstinate minority cannot compel the ship to rot in idleness at the wharf; nor can an inconsiderate majority of owners, by mere will, send a ship on an illegal or otherwise objectionable voyage, without first giving to the dissentients security for safe

return.

37

In the common law courts, recognizance is a bond given by the acts of the court, to a party for his personal security. In the Admiralty, bail is given to the court directly for the thing, its substitute, substance, or precise equivalent. It is immaterial what may be the form of the instrument, whether it be by bond, stipu lation in the nature of a recognizance, or by other form of instrument, sealed or unsealed. But whatever be its form, the instrument itself is usually taken upon the voluntary application of the claimant, and by the court's command; so that its jurisdiction would rightfully exist and extend, not only over the principal cause, but also over all its incidents. The Alligator,

1 Gall. 149.

Bail in admiralty, is not, then, like the ordinary recognizance given to a sheriff or a party in other courts, a mere personal security; but it is a stipulation for the thing, whenever an Admiralty Court shall, by order, decree, or other judicial act, command its arrest, seizure, or production. Perhaps no better general definition of bail in Admiralty than that given by Sir William Scott in 1811 (1 Dods. 50, The Neid Elwin), can be referred to.

The obligation of the sureties (fidejussores) is given

IN WHAT CASES TAKEN.

435

to the court; and whenever several persons without the claimant enter into such stipulations, all are deemed to be held as principals; and none are released from their obligation by lapse of time. The Vreede, 1

Dods. 1.

The basis of giving or requiring bail, is a proceeding in rem, in the Admiralty courts. It may be proffered or taken on the arrest of a ship for salvage or other private claim; or it may be tendered and taken by consent. of parties, upon capture, for the purpose of releasing the prize, or captured cargo, before final adjudication. In this latter case of bailing captured goods, before final or interlocutory decree, great caution and circumspection are required of the court, as the bailing may tend to benefit the enemy; particularly if the intervening claimant be a real, supposed, or asserted neutral. Therefore, when bail is proffered, either after the preparatory evidence and before farther proof, or after farther proof and before adjudication, any Admiralty Court would be justified in declining to take the prof fered bail, at such stage of the proceedings; and for numerous well founded reasons.

As in the Neid Elwin (supra), Sir William Scott well defined bail, so in the Amy Warwick (2 Spr. 152), Judge Sprague has well enumerated the objections to accepting bail in case of prize, upon demand of a neutral claimant. "There are very serious objections to delivery of captured property on bonds to claimants, which have always weighed with prize courts. Before the hearing in preparatory, it cannot well be judicially known that the claimants are not enemies, or that they have such absolute title on the property as to be the persons to whom it should be restored, in case it should

436

BAIL, IN PRIZE, RESTRICTED BY STATUTE.

be decided to be no prize- beside the consideration that the captured property may itself be evidence. If, on the hearing, their claim remained in doubt on any of those points, why should they take the property rather than the captor? The court must be careful to deliver the property to none but the actual owners, and persons who would not pass it to any enemy for whom they might act.

"There are other difficulties attending this course. It throws on the captors the risk of the sufficiency of the bondsmen at the time, and their continued solvency until the final decision in the appellate court.

"It gives the claimants the chance of abiding or not abiding by the appraisement. If it is low, they would adopt it and give bonds, and so make a profit at the expense of the captors. If the appraisement is to the full value, they may decline to give the bonds. And there is always danger of undervaluation, not only by fraud, and by the pressure of interests in the trade, but from erroneous principles of estimation.

"A public sale is the best and fairest proof of value, and the most satisfactory course is to sell the property, deposit the funds in the registry to be delivered to the parties finally decided to be entitled to them, where there are no special circumstances."

By the U. S. Prize Act of June 3, 1864, § 26, however, the Federal courts are empowered expressly, in certain cases and at particular stages of the proceedings, to deliver the property on stipulation or deposit of its value as where restitution has been decreed and the captors have appealed; or where, after full hearing, the court has refused to condemn upon the preparatory proofs, and has given the captors leave to take further