Barnes v. Taylor , 29 Me. 514 ( 1849 )

Shepley, C. J.

The action is trover to recover for the conversion of the schooner Palo Alto and cargo. The defendant, as collector of the customs for the district of Wiscas-set, caused the vessel and cargo to be seized on July 15, 1847, as forfeited to the United States for a breach of the revenue laws. A libel having been filed, the plaintiff, on July 21, appeared and claimed the property; admitted its liability to forfeiture, and filed a petition to the Secretary of the Treasury for a remission of the forfeiture. On the 30th day of September following, a remittitur of the forfeiture by the Secretary was filed in Court, and a warrant was issued by the Court to the marshal for a restoration of the property to the claimant. Soon after, the attorney of the Uuited States received instructions from the Secretary for a return of the remittitur, that it might be revoked. These instructions were communicated to the collector with a suggestion, that the action of the collector and marshal upon the warrant for a restoration of the property should be suspended.

On October 8, 1847, a deputy of the marshal made a return upon that warrant, that he had made a demand for a delivery of the property upon the collector, who refused to deliver it.

This refusal is relied upon as evidence of conversion.

On November 30, 1847, a revocation by the Secretary of his remittitur was filed in Court, and on the 7th of December following, the plaintiff presented to the Court a petition, that the property might be delivered to him upon his giving a bond to the United States for its appraised value. An ap-praisement was ordered and made, and a bond executed by the plaintiff with surety, was filed, and on December 18th, a warrant was issued by the Court for a delivery of the property to the plaintiff, and it was by virtue of that warrant delivered to him on the 22d day of the same month.

On the 27th day of the same month this action was commenced.

It is not necessary to recite the further proceedings respecting that seizure in the Courts of the United States.

It is provided by the act of Congress, approved on March 2, 1799, c. 128, <§. 69, that all goods, wares and merchandize, seized by virtue of that act, shall remain in the custody of the collector, until proceedings are had to determine, whether the same have been forfeited. Provision is made by the same act, <§> 89, that upon prayer of any claimant to the Court, that any vessel, goods, wares or merchandize seized and prosecuted, should be delivered to such claimant, the Court may cause an appraisement thereof to be made and, upon his filing an approved bond, order the property to be delivered to him.

Admitting that the return of the deputy marshal, made upon the first warrant, might be evidence of a conversion by the defendant on October 8, 1847, such demand and refusal is not conclusive proof of it. Hayward v. Seaward, 1 Moore & Scott, 459.

The petition of the plaintiff to the Court, filed on the 7th of the following December, was an admission, that the goods were then in the legal custody of the United States, as goods seized, and therefore legally in the custody of the defendant as collector of the customs. The goods were subsequently received by the plaintiff from the defendant, upon a bond given to the United States, for their appraised value, according to the provisions of the statute and in execution of the process of law. “ When goods are brought into the custody of the law by process in rem a claimant cannot, it is true, recover the possession of them but by order of the Court.” The Emblem, Daveis’ Reports, 69. When a precept of the Court, which orders a restoration of property, is not executed by restoring it, the property yet remains in the custody of the law and of the proper officer, to whose custody it is entrusted by the law. If that officer refuses to obey the precept directing a restoration, it is for the Court issuing the precept to adopt the proper measures to cause the property to be restored by compulsory process, if it shall adjudge such to be its duty. The Court issuing the second precept for a restoration must have regarded the property as still in the custody of the law.

Under such circumstances the defendant cannot be considered as having converted the goods to his own use, by refusing to deliver them in obedience to the first precept issued for their restoration. If he were so considered, the plaintiff, instead of presenting a petition to the Court for their restoration, might have immediately commenced a suit against the defendant and have recovered their value. And even admitting that he might have done so, he could not, after admitting them to be in the custody of the law and its designated officer, be permitted to allege, that they had before been by that officer converted to his own use as a tortfeasor.

The bill of exceptions states, that there was evidence tending to prove, that some of the liquor had been abstracted from the casks after the seizure and before the appraisement, and that all the property seized was not restored.

This testimony does not tend to show, that there had been any liquor taken from the casks, before the plaintiff filed his petition to have the property restored, upon giving a bond for its appraised value. And if it was not all restored, being legally in the custody of the defendant, the proper remedy would seem to have been found by an application to the Court having authority to cause it to be restored or compensation to be made. The marshal appears to have made a return, that he had delivered possession of the vessel and cargo to the claimant; and the claimant does not appear to have made any complaint to that Court, that all the property seized was not restored.

The instruction to the jury, that their verdict must be for the plaintiff, was erroneous.

It will not be necessary to consider the other points made in argument.

Exceptions sustained, verdict set aside and new trial granted.