Argument for the distiller. as a bar to an action only when the property was restored, according to the proviso in the statutes above referred to, and ordered judgment for the plaintiff on the verdict. This case was decided by judges of the highest character for learning and ability. In the case before us all will agree that it was not the duty of the marshal to make return of the property to the claimant; and that the District Court could only require him to release the property from the arrest. But if it were the duty of the marshal to make the return, and the court had power to require him to perform such duty, it would nevertheless be very doubtful whether the marshal's neglect of duty would not prevent the statute from operating as a protection to the defendant. The return of the property forthwith after judgment is a condition precedent to the exemption from liability declared by the statute; and it is clear that it was the intention of Congress that a failure to make such return should fix the liability of the seizing officer. If the marshal neglected his duty to the injury of the seizing officer, the latter must seek his remedy against the marshal; and if any application to the District Court was necessary to secure such return, it was the defendant's duty, and not that of the plaintiff, to take care that such application was made, in order to secure the protection of the statute. But the marshal had no such duty imposed upon him in this case. The defendant of course was liable to the warehouseman for storage, for which the latter could probably retain the possession of the property-at least as against the defendant-and perhaps as against the plaintiff, and against the marshal after the order or judgment of the District Court that the property should be discharged, and that there was reasonable cause for the seizure. It is enough to require a citizen, when his goods have been seized and not forfeited, to come into court and establish his title by judgment of the court; and when this has been done, and the party who has committed the admitted and gross wrong is protected by what is called a "certificate Restatement of the case in the opinion. of probable cause," it is little enough to require him to return the goods, or procure their return, and especially where they remain under his own personal control, as it can hardly be doubted that they did in this case. The judgment upon the verdict in favor of the plaintiff was right, and the judgment should be affirmed. Mr. Justice CLIFFORD delivered the opinion of the court. Judgments rendered in the Circuit Court, in any civil action against a collector or other officer of the revenue, for any act done by him in the performance of his official duty, or for the recovery of any money exacted by or paid to him, which shall have been paid into the treasury, may, at the instance of either party, be re-examined and reversed or affirmed in this court upon writ of error, without regard to the sum or value in controversy in such action.* Certain personal property belonging to the plaintiff, consisting of four hundred and three gallons of whisky and the barrels in which it was contained were seized by the defendant, as the collector of internal revenue for the 27th district of the State, and it appears that such proceedings were had that the district attorney for the district filed an information against the same, in behalf of the United States, founded upon that seizure, in which he alleged that the property was subject to certain duties and taxes which had been duly imposed upon the same, and that the property was found by the defendant, as such collector, in the possession and custody, and within the control of the plaintiff, for the purpose of being sold by him in fraud of the interual revenue laws, and with the design to avoid the payment of the duties and taxes so imposed. Process in due form was issued and the marshal made return upon the same that he had seized and attached the property, and cited all persons to appear and assert their claims, as the process commanded. Subsequently the plaintiff appeared and made claim that he * 15 Stat. at Large, 44. Opinion of the court. was the true bonâ fide owner of the property, and filed a claim and answer denying all the material allegations of the information, to which the district attorney replied tendering an issue, upon which the parties went to trial and the jury found that the property did not become forfeited as alleged by the district attorney. Pursuant to the verdict the court rendered judgment in favor of the claimant, and that the property be discharged, and the court also adjudged and certified that there was probable cause for the seizure of the property. Judgment was rendered for the claimant in the District Court on the 21st of August, 1868, and the plaintiff, on the 25th of January of the next year, commenced the present suit, which is an action of trespass, against the defendant, in the State court, wherein the plaintiff alleged that the defendant, on the 4th of February, 1868, being the day the defendant seized the property described in the information, with force and arms, at the place therein named, seized, took, and carried away the described chattels, of the value therein alleged, and that he converted the same to his own use, and still unlawfully detains the same from the plaintiff. Due application was made by the defendant for the removal of the cause from the State court into the Circuit Court, and it was accordingly removed as prayed by the defendant, and he appeared and pleaded the general issue, that he is not guilty in manner and form as the plaintiff has alleged in his complaint. Issue having been joined the cause came to trial, and the jury, under the instructions of the court, returned a verdict for the plaintiff in the sum of $1014.46," subject to the opinion of the court upon the questions of law arising upon the proof of a certificate of probable cause, and upon the fact of the non-return of the property." Considerable delay ensued, but the case was finally turned into a special verdict, and the court rendered judgment in favor of the plaintiff for the sum found by the jury. Whereupon the defendant sued out the present writ of error and removed the cause into this court. Trespass certainly will not lie in such a case for the act of Opinion of the court. seizure, unless it appears that the act was tortious or unauthorized, neither of which is proved or can properly be presumed in the present case, as the act of seizure was made by the party as the collector of the revenue and in a case where it was his duty to make it if he really believed, what he alleged, that the property was forfeited to the United States. Attempt to sell such property to avoid the payment of the internal revenue duties imposed thereon is a legal cause of forfeiture, and if the defendant, as such collector, had good cause to believe and did believe that the property described in the information was forfeited to the United States by any such attempt of the owner, it was his duty to make the seizure, and inasmuch as the District Court, having jurisdiction of the subject-matter, have adjudged and certified that there was probable cause for the seizure, the court is of the opinion that trespass will not lie for that act.* Nothing of the kind is pretended, even by the plaintiff, but he insists that the decree discharging the property from the attachment made by the marshal, under the process issued by the District Court in pursuance of the prayer contained in the information, made it the duty of the defendant to return the property to him as the lawful claimant, and that inasmuch as the defendant neglected to return the property, he became a trespasser ab initio; but the court, in view of the circumstances, is not able to concur in that proposition, for several reasons: (1.) Because it is settled law, and always has been, since the decision in the case of Vaux v. Newman,t that a mere nonfeasance does not amount to such an abuse of authority as will render the party a trespasser ab initio. (2.) Because the District Court, which had jurisdiction of the subject-matter, adjudged and certified that there was probable cause for the seizure of the property. (3.) Because the property was taken out of the possession of the defendant. by virtue of the judicial process issued by the District Court, pursuant to the prayer contained in the information, and remained, throughout the litigation, in the custody of the mar * United States v. Distilled Spirits, 5 Blatchford, 410. † 8 Coke, 146. Opinion of the court. shal as the officer of the court which issued the process. (4.) Because the property under such circumstances, though in the custody of the marshal for safekeeping, is, in contemplation of law, in the possession of the court for adjudication. (5.) Because the plaintiff did not obtain any order from the District Court for a return of the property nor make any demand for the same either of the marshal or of the defendant. 1. Extended argument to show that a mere omission of duty, or neglect to do what another has a right to exact, or any other mere nonfeasance, will not amount to such an abuse of authority as will render the party a trespasser ab initio, is quite unnecessary, as the proposition is not controverted, nor can it be, as it is supported by the highest judicial authority. It was resolved in the leading case that not doing a thing cannot make a party a trespasser ab initio, because not doing is no trespass, and, therefore, if the lessor distrains for his rent and thereupon the lessee tenders him the rent and arrears, and requires his beasts again, and the lessor will not deliver them, this not doing cannot make him a trespasser, and that rule was affirmed in the case of West v. Nibbs, by the whole court. When an act is legally done, said Spencer, C. J., it cannot be made illegal ab initio, unless by some positive act incompatible with the exercise of the legal right to do the first act.† * 2. Proof of probable cause, if shown by the certificate of the District Court which rendered the decree discharging the property, is a good defence to an action of trespass brought by the claimant against the collector who made the executive seizure, provided it appears that judicial proceedings were instituted and that the charge against the property was prosecuted to a final judicial determination. Where the respondent prevails in such an information, the court, says * 4 Manning, Granger, and Scott, 185. + Gates v. Lounsbury, 20 Johnson, 429; Jacobsohn v. Blake, 6 Manning & Granger, 925; Doolittle v. Blakesley, 4 Day, 265; Shorland v. Govett, 5 Barnewall & Cresswell, 488; Gage v. Reed, 15 Johnson, 403; Waterbury v. Clark, 4 Day, 198; Ferrin v. Symonds, 11 New Hampshire, 363. |