United States v. 59,650 Cigars

Second Circuit

United States v. 59,650 Cigars

146 F. 130, 76 C.C.A. 556, 1906 U.S. App. LEXIS 4089

CourtCourt of Appeals for the Second Circuit

DecidedMarch 23, 1906

DocketNo. 187

StatusPublished

This text of 146 F. 130 (United States v. 59,650 Cigars) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. 59,650 Cigars, 146 F. 130, 76 C.C.A. 556, 1906 U.S. App. LEXIS 4089 (2d Cir. 1906).

Pincite

Opinion

PER CURIAM.

The only point raised is that notice of the pen-dency of the proceedings in court to forfeit the property seized should have been given to the surety by personal service or publication. The only notice given was to the attorney for the claimant.

Appellant relies upon a provision in the section which reads as follows:

“In case said bond shall have been executed and the' property returned before the seizure thereof by virtue of the process aforesaid, the marshal shall give .notice of pendency of proceedings in court to the parties executing said bond by personal service or publication, and in such manner and form as the court' may direct, and the court shall thereupon have jurisdiction of said matter and parties in the same manner as if such property had been seized by virtue of the process aforesaid.”.

The “process aforesaid” is the process of the court, the “monition” commanding the marshal to attach and detain the property.

The record shows that the provision above quoted is inapplicable. On September 25, 1903, the collector of internal revenue seized the goods under the authority conferred on him by section 3453 [U. S. Comp. St. 1901, p. 2278]. On September 28th the bond was executed, on September 29th the information was verified, and on September [131]*13180th monition issued to the marshal, who on the same day, attached the property which he found in the hands of the collector. Subsequently, on September 30th, the claimant applied to the court, presenting the bond, and asking for delivery of the cigars, “as the same are attached by the marshal.” .Thereupon the court ordered that they be delivered to the claimant. Had the collector returned them before seizure by the marshal, the provision above quoted would have applied; but since it is manifest that they were actually seized by virtue of the monition before they were returned, personal service of notice was unnecessary, the proceeding being in rem.

The judgment is affirmed.

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PER CURIAM.

The only point raised is that notice of the pen-dency of the proceedings in court to forfeit the property seized should have been given to the surety by personal service or publication. The only notice given was to the attorney for the claimant.

Appellant relies upon a provision in the section which reads as follows:

“In case said bond shall have been executed and the' property returned before the seizure thereof by virtue of the process aforesaid, the marshal shall give .notice of pendency of proceedings in court to the parties executing said bond by personal service or publication, and in such manner and form as the court' may direct, and the court shall thereupon have jurisdiction of said matter and parties in the same manner as if such property had been seized by virtue of the process aforesaid.”.

The “process aforesaid” is the process of the court, the “monition” commanding the marshal to attach and detain the property.

The record shows that the provision above quoted is inapplicable. On September 25, 1903, the collector of internal revenue seized the goods under the authority conferred on him by section 3453 [U. S. Comp. St. 1901, p. 2278]. On September 28th the bond was executed, on September 29th the information was verified, and on September [131]*13180th monition issued to the marshal, who on the same day, attached the property which he found in the hands of the collector. Subsequently, on September 30th, the claimant applied to the court, presenting the bond, and asking for delivery of the cigars, “as the same are attached by the marshal.” .Thereupon the court ordered that they be delivered to the claimant. Had the collector returned them before seizure by the marshal, the provision above quoted would have applied; but since it is manifest that they were actually seized by virtue of the monition before they were returned, personal service of notice was unnecessary, the proceeding being in rem.

The judgment is affirmed.

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Bluebook (online)

146 F. 130, 76 C.C.A. 556, 1906 U.S. App. LEXIS 4089, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-59650-cigars-ca2-1906.