PART 3. a dedimus potestatem; but by the judiciary act it is provided that "the mode of proof by oral testimony, and the examination of witnesses in open court, shall be the same in all the courts of the United States, as well in the trial of causes in equity and of admiralty jurisdiction, as of actions at common law" Having already, in a preceding chapter, treated of the subject of evidence, and what is there stated being in general applicable to the description of actions now under consideration, little remains requiring notice in this place. In cases of seizure, whether prosecuted on the admiralty or exchequer side of the court, witnesses are summoned by the like process and are subject to the same penalties for non-attendance; the same description of documentary evidence are admissible, and the production of books and other writings may be required, under the like conditions, and with the like effect; depositions de bene esse, or under a commission, or in perpetuam rei testimoniam, may be taken and used in like manner, as in ordinary actions at law. The section of the judiciary act above referred to which authorizes and regulates the taking of depositions de bene esse, contains also the following provision, applicable especially to this description of suits, viz.: that "in causes of admiralty and maritime for his services ought to be allowed. If no person was employed, I should not, as at present advised, incline to grant a compensation for ideal custody. There should be an actual superintendence over the property, to entitle the party to a beneficial recompense, and even in cases of actual custody, if there be gross negligence or fraud, I should have no difficulty in refusing the party any compensation. Let the captors show by affidavit whether there has been any actual custody, and what would be a reasonable compensation. If actual custody, with competent diligence, be shown, I shall allow the item against the claimants, as this is not a case entitling them to a very favorable consideration in this court." 'Act of 24 Sept., 1789, ch. 20, § 30: 1 Stat. at Large, p. 73. jurisdiction, or other causes of seizure, when a libel CHAP. 3. shall be filed, in which an adverse party is not named, and depositions of persons circumstanced as aforesaid shall be taken before a claim be put in, the like notification as aforesaid shall be given to the person having the agency or possession of the property libeled, at the time of the capture or seizure of the same, if known to the libelant." The language of this provision implies that depositions may be taken in behalf of the government, in these cases, before the cause is at issue. Indeed, according to the terms in which the right to take such depositions is conferred, authorizing them to be taken "in any civil cause depending in any court of the United States," it seems to have been intended generally to give to each party the right of taking them immediately upon the institution of the suit. But inasmuch as there is no personal party defendant in suits in rem until after the claimant has appeared and been admitted in that character, it is presumed that this right cannot be exercised by the owner of property seized until after the actual interposition of his claim. There is another mode of obtaining the testimony of witnesses resident in a foreign country, which is peculiar to admiralty courts; and that is by invoking the instrumentality, for this purpose, of the admiralty courts of the country within whose jurisdiction the witnesses are. This method is resorted to when it is foreseen or apprehended that an attempt to have the desired evidence taken under a commission will be rendered abortive by the jealous interference of the authorities of such foreign country. The request to the foreign court is made by what is denominated letters rogatory. This mode of obtaining proofs in admiralty cases is said to be recognized by all nations PART 3. where courts of admiralty are established; and as all are interested in maintaining it, great reliance may be placed upon its certainty and efficiency. Interrogatories accompany the letters rogatory. The depositions when taken are recorded in the registry of the foreign court, and authenticated copies of them are transmitted to the court whence the letters rogatory emanated; and these, according to the established usage of courts of admiralty, are admissible as evidence.1 With a view, it may be supposed, of securing evidence of frauds on the revenue, it is enjoined by law on the district judge of any district, whenever it shall be made satisfactorily to appear, by affidavit, that any such fraud has been committed or attempted, forthwith to issue his warrant, directed to the collector of the port where the merchandise in question has been entered, directing him or his duly appointed agents or assistants, to enter any place or premises where invoices, books or papers relating to such merchandise or fraud are deposited, and to take and carry them away for the use of the United States, so long as the retention thereof may be necessary, subject to the control and direction of the solicitor of the treasury. The officers of the customs and informers, as we have seen, are declared by the 91st section of the collection act of 1799, to be competent witnesses in cases of seizure-the distributive share to which they 'See Appendix, "Practical Forms." When, in compliance with letters rogatory addressed by a court of a foreign country to a circuit court of the United States, a commissioner is designated to take the required testimony, such commissioner is empowered to compel the witnesses to attend and testify. Act of March 2, 1855, ch. 140: 10 Stat. at Large, p. 630. Act of March 3, 1863, ch. 76, §7: 12 Stat. at Large, p. 740. Section 8th of this act makes it a misdemeanor severely punishable by fine and imprisonment, to conceal or destroy any such papers to prevent their use as evidence. would otherwise be entitled being withheld from them, CHAP. 3. when they are sworn as such witnesses. SECTION IX. PROCEEDINGS FROM THE HEARING OR TRIAL, INCLUSIVE, TO 1. Of the hearing or trial. Little is required to be said in this place in addition to the directions already given under the corresponding head in an antecedent part of this treatise. When the proceeding is on the exchequer or common law side of the court, the trial is conducted in all respects in the same manner, and is subject to the same incidents as an ordinary personal action. When the seizure is of admiralty jurisdiction, the case is heard and the questions of fact as well as of law are determined by the court, without the intervention of a jury, as in cases of equity. The revenue laws are not, in a strict sense, penal acts, and they ought to be so construed as most effectually to accomplish the intention of the legislature in passing them, instead of being construed with great strictness in favor of the defendant. Taylor, Blackburn & Co. v. The United States, 3 Howard. 197. By the thirtieth section of the judiciary act, it is provided, that "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, then testifying, before the circuit court, should an appeal be had, and shall move that their testimony be taken down in writing, it shall be done by the clerk of the court.' 991 'Ch. 20 1 Stat. at Large, p. 73. PART 3. 2. Of the decree of judgment and execution. When the proceeding is on the common law side of the court, the judgment either of acquittal or condemnation follows the verdict of course as in other suits at law. When the case is of admiralty jurisdiction, the decree or sentence is either pronounced immediately, or time is taken by the judge for deliberation, and if he thinks proper, to reduce his opinion to writing. The sentence must however be entered in court; and as several months intervene between the stated terms of the district courts (except that of the Southern District of New York), it may sometimes be the duty of the judge, when the decision is to be deferred, to prolong the term by adjourning the court to some day only sufficiently distant to afford the necessary time for advisement. But when the property has been delivered on bond, no very serious inconvenience can in general arise from postponing the entry of the decree till the next ensuing term. When the judgment or decree is in favor of the claimant, it is the duty of the court to consider whether there was reasonable cause for seizure; and if so, to certify accordingly. It will be remembered that in all suits in the district court involving an amount exceeding fifty dollars, a writ of error or appeal lies to the circuit court; and that on judgments subject to review by writ of error, no execution can be issued until after the expiration of ten days from the rendition of the judgment-that period being allowed to the party to deliberate on the propriety of bringing a writ of error and to sue out the same in proper form. It follows therefore that upon a judgment in cases of seizure on the common law side of the court, when the property in controversy exceeds fifty dollars in |