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Statement of the case.

AVERILL V. SMITH.

Trespass will not lie against a collector of internal revenue for improperly

seizing and carrying away goods as forfeited, where, on information afterwards filed the marshal has returned that he has seized and attached them, and where after a trial absolving them a certificate of probable cause has been granted under the eighty-ninth section of the act of February 24th, 1807, and where the owner of the goods has never made any

claim of the collector for them except by bringing the action of trespass. The claimant of the goods after a trial where probable cause has been cer

titied, ought to move the court for the necessary orders to cause the property to be returned to the rightful owners, if the court bave itself omitted to make such an order. It is not the duty of either the marshal or collector to do so.

ERROR to the Circuit Court for the Northern District of New York,

An act of Congress of February 24th, 1807,* enacts:

“Tbat when any prosecution shall be commenced on account of the seizure of any ship or vessel, goods, wares, or merchandise, made by any collector or other officer, under any act of Congress, authorizing such seizure, and judgment shall be given for the claimant or claimants, if it shall appear to the court beforo whom such prosecution shall be tried, that there was a reasonable cause of scizure, the said court shall cause a proper certificate or entry to be made thereof; and in such case the claimant or claimants shall not be entitled to costs, nor shall tbe person who made the seizure, or the prosecutor, be liable to action, suit, or judgment on account of such seizure and prosecution; provided, that the ship or vessel, goods, wares, or merchandise, be, after judgment, forthwith returned to such claimant or claimants, his, her, or their agent or agents."

The 89th section of the Customs Act of March, 1799, contains a provision substantially the same.

These statutory provisions being in force, one Smith brought trespass against Averill, a collector of internal revenue, for taking and carrying away certain barrels of whisky.

The defendant pleaded vot guilty, and gave notice, under the practice of the second circuit, of his defences.

* 2 Stut. at Large, 422.

† 1 Id. 696.

Argument for the collector.

The case was tried, and a special verdict found as follows:

“That the derondant, being a collector of internal revenue, on the 4th of February, 1868, seized as forfeited to the United States, and carried away, and deposited in a storehouse at Corning, the whisky mentioned; the same then being in the possession of and owned by the plaintiff; that an information was filed against the same in the District Court of the United States for the said district; that on the 15th of May, 1868, a deputy of the marshal of the district presented to the defendant a process of the said District Court, commanding him, the said marsbal, to scize the said property; that the marshal made return that on the 4th of May, 1868, he did seize and attach the said property, and bad duly cited all persons to appear and assert their claims thereto; that he did not at any time notify to the person having possession of, and in whose warehouse the said whisky was stored by the said defendant, that he, the said marsbal, had taken possession thereof; that a claim and answer to the said property was put in by Smith, the plaintiff, as owner thereof; that a trial was had and a judgment entered that the property did not become forfeited, but that the same belonged to said Smith, the plaintiff; that afterwards, the said court, adjudged and certified that there was probable cause for thu said seizure; that the plaintiff had never made claim of the defendant for the said property except by bringing the said action; neither had said property, or any part thereof, ever been returned to the plaintiff, nor had any offer been made to return the same, but that the same still remained in such storehouse at Corning aforesaid.”

On this verdict judgment was entered for the plaintiff, and to review that judgment the defendant prosecuted this writ of error.

Mr. G. H. Williams, Attorney-General, and Mr. C. A. Hill, Assistant Attorney-General, for the plaintif in error:

Upon the facts shown by the special verdict, an action of trespass will vot lie against the defendant.

The second resolution in the Six Carpenters' Case,* was

* 8 Reports, 146; S. C., 1 Smith's Leading Cases, 216.

Argument for the collector.

“that not doing cannot make the party who has the authority or license by the law a trespasser ab initio, because not doing is no trespass; and, therefore, if the lessor distrains for bis rent, and thereupon the lessee tenders him the rent iu arrear, &c., and requires his beasts again, and he will not deliver them, this not doing cannot make him a trespasser ab initio.This principle has been universally recognized. In West v. Nibbs,* it was held “that a landlord who has accepted the rent in arrear, and the expenses of the distress, after the inpounding, cannot be treated as a trespasser merely because he retains possession of the goods distrained, although his refusal to deliver them up to the tenant may amount to a conversion so as to render him liable in trover.” And Gardner v. Campbell,+ Smith v. Egginton, Waterbury v. Lockwood, § Jacobsohn v. Blake,ll and other authorities collected and to be seen in the last edition of Smith's Leading Cases, 1 affirm this rule. The certificate of probable cause showed that the original seizure of the goods was lawful, and threw the onus probandi upon the claimants.

There was an omission, too, in the judgment of the District Court to make any order in respect of the return of the goods. The goods were not in the possession of the collector. The marshal had taken them out of his possession by order of a writ directed to him; and, of course, thenceforth they were in possession of the court. The collector had nothing more to do with them. He could not return them to the plaintiff. The goods being in possession of the court, the plaintiff should himself have come into court and asked to have them back, when he would have received them as of course.

But whatever effect this absence of an order in respect to the return of the goods may have bad upon the rights of the parties on the judgment in the District Court, it was necessary for the owner to have taken active measures in some

* 4 Common Bench, 172.

† 15 Johnson, 401.
| 7 Adolphus & Ellis, 167.

4 Day, 257.
ll 6 Munning & Granger, 918, 924.
| Seventh edition, vol. 1st, note to The Six Carpenters' Case.

Argument for the distiller.

form to recover his property, and to have encountered a refusal; and, without deciding whether he has a remedy in trover or replevin, it is clear on the authorities that the present action will not lie.

Mr. M. W. Cooke, contra:

The case shows a trespass. The defendant, without process, seized, took, and carried away plaintiff's property. The cases cited on the other side, save one, were for acts of officers proceeding upon execution or process of the court. In Gardner v. Campbell, the defendant took the plaintiff's goods under and by virtue of an execution, and it was decided, simply, that replevin would not lie. This case has no bearing except to show that plaintiff herein could not have replevied the goods if the position of plaintiff in error is correct.

In Smith v. Egginton, and Waterbury v. Lockwood, the defendant, an officer, was acting under process of the court directing the seizure of the goods of defendant named in the process. The court seized them. The case of Jacobsohn v. Blake, so far as it has any bearing, is against the position claimed. The officer there did not seize the goods, and it was upon this ground that the judges decided the case. Tindal, C.J., says:

“In order to maintain such an action (trespass) there must have been an actual seizure of plaintiff's goods."

The goods were simply examined and returned. In the suit at bar they were seized, carried away, and never returned.

The property, when the collector seized it, was put into a warehouse not owued by himself. The marshal attached the property, and gave the proper notices; but he did not remove the property from the warehouse where it was de. posited by the collector's order; and, so far as appears from the special verdict, he did not in any way interfere with the possession of it by the warehouseman, as the bailee of the collector.

Argument for the distiller.

Assume, however, for the purposes of the argument, that the return of the marshal is conclusive, and that either by the indorsement and delivery to him of the warehouse receipt for the property, or otherwise, he had properly executed his process, and afterwards held the property under legal arrest until it was discharged by the judgment of the District Court.

The question then to be determined is, whether the certificate of reasonable cause, granted by the District Court, is a good defence to this action; as the property seized was never returned or offered to be returned to the owner.

In a case like that complained of here, probable and reasonable cause is confessedly no defence, except where some statute creates and defines the exemption from damages.*

In this case the exemption is claimed under the first section of the act of the 24th of February, 1807, and the eightyninth section of the Customs Act of 1799. Now the case of Hoit v. Hook,t decided in the Supreme Judicial Court of Massachusetts, by Chief Justice Parker, and Justices Thatcher, Putnam, and Wild, in 1817, seems iu point,

The property in that case (certain cattle) had been seized and libelled and then sold, pendente lite, under the order of the District Court of the United States. After it had been sold the cause was tried, and Hoit, the plaintiff, as the then claimant, had a verdict. The district judge thereupon decreed that the property was not liable to forfeiture; that there was reasonable cause for the seizure; that $381.43 for the expenses which had been incurred for the custody and sustenance of the cattle should be deducted from the proceeds of sale; and that the residue, $151.57, should be paid to the claimant.

A verdict having been taken for the plaintiff in the State court, subject to the opinion of that court, upon the facts stateil, the question whether the certificate and decree of the District Court were a defence was argued, and the court decided that the certificate of reasonable cause could operate

* The Apollon, 9 Wheaton, 362, 373.

† 14 Massachusetts, 210.

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