§ 414. Evidence - Depositions. The rules of evidence are the same in admiralty as in other causes in the Federal courts. As, however, an appeal in admiralty is a new trial, it is not necessary to take exceptions to the rulings of the trial judge. All the rights of the appellant are preserved by the noting of objections in the District Court. In admiralty causes much of the evidence is taken de bene esse, as the witnesses are, for the most part, seafaring men. The practice is governed by §§ 863865 of the Revised Statutes. The powers vested in commissioners of the Circuit Court are now extended to notaries public.2 The question § 415. Interlocutory decree and reference. of damages is seldom tried before the court. In case the libelant is successful, an interlocutory decree is entered, by which it is referred to a commissioner or referee to ascertain the damages sustained by the libelant, and report thereon to the court. Such a referee has all the powers of the court. Unlike a master taking proofs before trial, he rules upon questions of evidence. Upon the filing of the report by the commissioner, the successful party should serve his opponent with notice of the filing, and of a motion to confirm the report, and thus limit the time within which exceptions may be filed; or the report may be confirmed nisi on motion, without notice, on the return day, which will also fix the time within which exceptions may be filed. The party filing exceptions should notice them for hearing. They must be specific. Upon the expiration of the time allowed by the practice of the District Court for the filing of exceptions, if none have been filed, a. final decree may be entered. The final decree should contain a provision confirming the report. It is not necessary to enter a special order of confirmation.2 R. 880. A new trial in the District move to dismiss at the close of the libelant's case, and take testimony pending that motion without waiv. ing his right to have his motion de 2 Act of Aug. 15, 1876, ch. 304; U. S. cided, regardless of the other facts R. S., § 1778. § 415. The Commander-in-Chief, 1 Wall. 43; The Cayuga (C. C. A.), 59 Fed. R. 483. But see Ross v. So. Cotton Oil Co., 41 Fed. R. 152. It has been held that the claimant might brought out upon the cross-examination of his witnesses. Puget Sound M. Depot v. The Guy C. Cross, 53 Fed. R. 826. 2 In the New York districts four days are allowed from the date of 416. Final decree. The form of the final decree varies according to the form of the action and the nature of the security furnished. In suits in rem, if the res has been bonded under the Act of 1847, a summary judgment for the amount of the bond may be entered against the claimant and his sureties.1 Where a stipulation for value has been given, the final decree provides that, unless the decree be satisfied or proceedings thereon be stayed on appeal within the time and in the manner prescribed by the rules and practice of the court, the stipulators for costs and value cause the engagements of their stipulations to be performed, or show cause within a time fixed by the rules, or on the first day of jurisdiction thereafter, why execution should not issue against their property to enforce satisfaction of the decree. At the expiration of the time provided by the rules of the several districts, and on proof of service of a copy of the decree on the proctors for the unsuccessful party, the court will grant an order to show cause why execution should not issue against the stipulators. In suits in rem, the final decree always provides for the condemnation and sale of the res; but this provision is, of course, not carried out by an actual sale if the res has been bonded. The bond or stipu lation takes the place of the res, which once released cannot be reached again by process, unless it be subject to execution as property of one of the stipulators or bondsmen. In suits the in personam, the decree follows the form of an ordinary decree in equity, containing, however, a provision for judgment against the stipulators for costs similar to that contained in a decree against stipulators for value. A decree in personam cannot be entered in a suit in rem.+ Where two vessels are proceeded against and both are adjudged in fault, the decree should be against the two vessels and their respective stipulators severally, each for one moiety of the entire damage, interest, and costs, so far as the stipu lated value of each vessel extends, and should provide that any balance of such moiety over and above such stipulated value of notice of filing the report or from the return-day on which it is confirmed nisi, in which to file exceptions. 2 In the New York districts, four days. 3 The Union, 4 Blatchf. 90; The Thales, 3 Ben. 327; Johnson v. The § 416. Johnson v. Chicago & Pac. Hattie Belle, 65 Fed. R. 119. Elev. Co., 119 U. S. 388. 4 The Zodiac, 5 Fed. R. 220. either vessel, or which the libelant shall be unable to collect or enforce, be paid by the other vessel or its stipulators to the extent of the stipulated value thereof beyond the moiety due from said vessels. Where both the libelant's and the claimant's vessels are in fault, the damage done to both vessels is added together in one mass or sum and equally divided, and a decree is pronounced in favor of the vessel which has suffered the most against the other vessel for half the difference between the amounts of their respective losses." § 417. Sales. In suits in rem, where a default has been taken, or where, although a defense has been interposed, the res has not been bonded, the final decree orders the clerk to issue a writ of venditioni exponas to the marshal, directing him to sell the property in his custody at public auction. Such a sale gives the purchaser an absolute title, good as against all the world, if the proceedings have been duly taken.' Sales under a fieri facias, on the other hand, convey only the defendant's interest in the property sold. In no case will a sale be permitted in a proceeding in rem by default or by consent of parties unless publication has been duly made. The proceeds of sale must be paid over by the marshal forthwith to the clerk, who holds them in the Registry. All moneys deposited in the District Court are thus held in the Registry, being deposited by the clerk in some bank designated by the court subject to its orders.3 § 418. Sales as perishable.-It often becomes necessary, from the perishable nature or condition of the property attached, or its liability to deterioration, decay, or injury by being detained in custody, to sell it before the termination of the suit. In such cases, upon application, the court will order a sale, and direct the proceeds to be brought into court to abide the event of the suit. A sale will not be allowed merely on 5 The Alabama and Gamecock, 92 672; supra, § 37. Or it may sever the U. S. 695. 6 The North Star, 106 U. S. 17, 28. The court may in a proper case consolidate two libels, try them together and enter a single decree. The North Star and The Ellen Warley, 106 U. S. 17; The Eliza Lines, 61 Fed. R. 308; The Sarah E. Kennedy, 25 Fed. R. claims in the same libel and render a decree in one before it disposes of the other. Larrinaga v. Two Thousand Bags of Sugar, 40 Fed. R. 507. $ 417. The Trenton, 4 Fed. R. 657. 2 Adm. Rule 41. 3 U. S. R. S., § 995; Adm. Rule 42. § 418. Adm. Rule 10. the ground that the expenses of custody pending the suit may be a burden to the owners of property. § 419. Costs. In admiralty causes costs are subject to the same rules as in equity causes in the Federal courts. They are, of course, in the discretion of the court. Where damages are apportioned, costs are likewise apportioned, each party taxing a full bill of costs, and the party whose bill of costs is the largest recovering half the difference between the two bills. as taxed. This is true where the libelant's vessel alone has suffered damage, as well as where both vessels have been damaged. But in such a case the libelant will be allowed the full costs and disbursements of a reference made necessary by the act of the defendant. If, however, the defendant offers to allow the damages to be assessed at a certain sum, and the referee's report is for no greater sum, the libelant will be denied costs of the reference. Where a libelant recovers a portion of his damages against one vessel and a portion against another, he recovers costs against the vessels in similar proportions. Where a libel is dismissed for want of jurisdiction, no costs are allowed." Nor can costs be recovered against the United States. When a libelant upon his own appeal recovers less than three hundred dollars, exclusive of costs, he cannot recover costs, but, in the discretion of the court, may be adjudged to pay costs himself." When both parties appeal, and the decree of the District Court is not disturbed, it is not usual to allow costs to either party. § 420. Intervenors. In suits in rem third persons often · desire to intervene for their own interest or protection, as, for example, where there are many claims against a vessel, and one libelant contests the claim of another, either on the merits or on the question of amount due. S419. The America, 92 U. S. 432. 2 The Warren (Blatchford, J.), 25 Fed. R. 782. Contra, The Hercules, 20 Fed. R. 205. See also The Pennsylvania, 15 Fed. R. 814, where a different method of apportioning costs was adopted. 3 The Doris Eckhoff, 41 Fed. R. 156, 159. 4 The Alabama and Gamecock, 92 U.S. 695. Such a contestant is per 5 The McDonald, 4 Blatchf. 477; Wenberg v. A Cargo of Mineral Phosphate, 15 Fed. R. 285, 288. 6 The Antelope, 12 Wheat. 546. 7 The Cassius, 41 Fed. R. 367; U. S. R. S., § 968, which, however, refers in terms only to the Circuit Court. 8 The William Cox, 9 Fed. R. 672; McKeen v. Morse, 1 U. S. App. 7. mitted to intervene in a suit and file an answer or petition upon giving security for costs.1 § 421. Petition against proceeds of sale. The proceeds of a sale when paid into the registry take the place of the res, and may be proceeded against in the same way as the res itself. It is not necessary to issue process; any person having an interest in the fund may file a petition against the proceeds, in which he should set forth his cause of action, and allege the sale and payment into court of the proceeds. This petition is subject to all the rules applicable to libels. After the claims against a res and its proceeds have been paid or otherwise disposed of by the court, the person entitled to the remnants and surplus thereof may file a petition setting forth his interest and obtain thereon an order of reference to determine his right to the fund. The court has power to distribute the surplus proceeds to all those who can show a vested interest therein, in the order of their several priorities, no matter how their claims originated.2 § 422. Priorities. When the proceeds of a sale or the amount of a stipulation for value are insufficient to satisfy all the claims against a vessel or other res, it becomes necessary for the court to determine the order in which the claims shall be paid. The court will order payment in accordance with the priorities as settled by the admiralty law, without reference to the time when the libel was filed or the decree entered. But the libelant who files the first libel or in whose suit a sale is had has a priority so far as costs are concerned.' § 423. Appeals-What appealable; to what court.-Before the Evarts Act of March 31, 1891, an appeal may be taken from the final decree of a District Court in all cases in which the matter in dispute exceeds the sum or value of $50, exclusive of costs. The appeal must now be taken, except in prize cases, to the Circuit Court of Appeals, the decision of which court is final in all admiralty cases, except that it may certify to the Supreme Court any questions of law concerning which it de § 420. Adm. Rule 34. § 421. 1 Adm. Rule 43; Schuchardt v. Babridge, 19 How. 239; Petrie v. The Coal Bluff, 3 Fed. R. 531. 2 The Lottawanna, 21 Wall. 558, 582; The E. V. Mundy, 22 Fed. R. 173; 1 |