Smith v. Averill

22 F. Cas. 426, 7 Blatchf. 29

• Court: U.S. Circuit Court for the District of Northern New York
• Decided: October 15, 1869
• Status: Published

Opinion

HALL, District Judge.

It will be assumed, for the purposes of the present controversy, that the return of the marshal is conclusive; and that, either by the endorsement and delivery to him of the warehouse receipt for the property, or otherwise, he properly executed his process, and afterwards held the property under legal arrest until it was discharged by the judgment of the district court, or that it was so held by the collector, after the marshal’s seizure, as the legal custodian, under the act of congress. [A verdict was taken for the plaintiff, subject to the opinion of the court; and the counsel for the respective parties have submitted the ease upon their written briefs.] ³

The important question now 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 of municipal seizure, like that complained of in this case, probable and reasonable cause is no defence, except where some statute creates and defines the exemption from damages. The Apollon, 9 Wheat. [22 U. S.] 362, 373. But, in prize cases, the captors, if there be probable cause, are entitled, as of right, to an exemption from damages (Id. 372, 373); and, therefore, decisions made in prize cases are of no authority in respect to the present question, which depends entirely upon the construction of acts of congress.

In this case, the exemption from damages is claimed under the first section of the act of February 24, 1807 (2 Stat. 422), and the eighty-ninth section of the act of March 2d, 1799 (1 Stat. 695); and each of those sections contains a provision that the property seized must be returned. The provisions of those sections, in respect to the question now presented, are substantially the same; and that contained in the act of 1807 reads as follows: “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 before whom such prosecution shall be tried, that there was a reasonable cause of seizure, 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 the 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, aftet judgment, forthwith returned to such claimant or claimants, his, her, or their agent or agents.” It was insisted, by the plaintiff’s counsel, that, under this section and proviso, the certificate of reasonable cause is no defence, because the property was not returned; and he cited in support of his position, the case of Hoit v. Hook, 14 Mass. 210, decided in the supreme judicial court of Massachusetts, by Chief Justice Parker, and Justices Thatcher, Putnam, and Wilde, in 1817. The property in controversy in that ease had been seized and libel-led, and then sold, pendente lite, under the order of the district court. 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 $38443, for the expenses which had been incurred for the custody and sustenance of the cattle seized, 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 stated, 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 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 seems to be directly in point; and it was decided by judges of the highest character for learning and ability.

It was insisted, however, by the attorney for the United States, who appeared for the defendant, that he should not be held responsible, by reason of the non-return of the property seized, because (1) the plaintiff had never made a demand upon the collector for the return of the property; (2) the collector did not have the possession of. the property after the filing of the information, the marshal having taken possession of it under the process of the court, and the collector having no longer any control of the property, was not liable therefor. For this, he cited Burke v. Trevitt [Case No. 2,163]; The Maria, 4 C. Rob. Adm. 348; Shattuck v. Maley [Case No. 12,714]. He also Insisted that the plaintiff, failing to • obtain possession of his property, should have applied to the district court, which had power to compel a re-delivery of the property, or its value, into the possession of those who might be entitled to it. To maintain this position, he cited Slocum v. Mayberry, 2 Wheat. [15 U. S.] 1; Gelston v. Hoyt, 3 Wheat. [16 U. S.] 246; Burke v. Trevitt, ubi supra. The cases cited do not sustain these positions or weaken the authority of the case of Hoit v. Hook. In the case of Burke v. Trevitt there had been no information filed against the property in respect to which a recovery was claimed; and, of course, there was no certificate of probable cause. The owner of the property failed to recover because he failed to make out the trespass or taking alleged. The case of The Maria was a case of capture as an alleged prize, jure belli, and, as has been before stated, such cases have no application to the present question. In the cases of Shattuck v. Maley and Slocum v. Mayberry there had been no trial or certificate of reasonable cause; and in Gelston v. Hoyt there had been a trial, but a certificate of reasonable cause had been refused by the district court. In short, these authorities are not applicable to the present case.

It was insisted, however, that, the property having been arrested by the marshal, under the warrant of arrest, it was no longer in the custody of the defendant; that it was the duty of the marshal to return the property; that, If he failed to do so, the plaintiff should have applied to the district court to compel the marshal to return the property; and that the defendant was not liable for the marshal’s default.

It is quite certain 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, to say the least, 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 has 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; and the defendant 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.

The plaintiff must have judgment upon the verdict.

[This judgment was reversed by the supreme court, where it was carried on writ of error. 17 Wall. (84 U. S.) 82.]

3 [From 9 Am. Law Reg. (N. S.) 47.]