Sailly v. Smith , 11 Johns. 500 ( 1814 )

Yates, J.

delivered the opinion of the court. The powers delegated by law to the defendant, as collector of the customs for the district of Champlain, are sufficient to authorize the" seizure of the goods.

By the 8th section of “ the act to interdict the commercial intercourse between the United States and Great Britain and! France, and their dependencies, and for other purposes,” “ the' collector, naval officer, surveyor, arid other officer" of the customs, shall have the like power, and authority to seize goods, wares, and merchandises, imported contrary to the intent and meaning of that act; to keep the same in custody, until it shall have been ascertained whether the same have been forfeited of not; and to enter any ship or vessel, dwelling house, store, building, or other place, for the purpose of searching for, and seizing any such goods, wares, and merchandises, which he, of they, may have by law, in,relation to goods, Wares, and merchandises subject to duty.” This section is continued in force, by a supplementary act, passed the second day of March, 1811.

From the facts disclosed by the pleadings in this case, it is not necessary to decide whether the collector, by law, is, at all times; authorized to eater and search a dwelling house, without ¡first obtaining a warrant from a magistrate. This would be an extensive and highly important authority; and, if it does exist, ought to be used with great prudence and sound discretion, because it is liable to be abused; yet, public convenience, in many instances may require that it should be exercised. Cases, however, may occur when the officer may act unwarrantably, by proceeding without probable cause, to break open a dwelling house. His conduct, in such a case, would make him liable, notwithstanding the law, to remunerate in damages to the owner of the house. When, therefore, such suspicions exist, ifc would be a more correct co-use for him o appls to a agistrate, whose warrant would effectually protect him, a-.d prevent the necessity of showing probable cause, afterwards, by other testimony.

In the case before us, no such precaution.was requisite. The goods were taken out of a sleigh standing under an open shed. The collector, therefore, had a right by law to make the seizure, and to retain the goods in Ms custody, until it could be ascertained, by due course of law, whether they were forfeited or not. Admitting, then, that the facts stated in the replication to the second plea arc true, and that the seizure was in the manner therein set forth, the law of the United States authorized it, and is a sufficient protection to the defendant in this cause.

The same reasons apply to the replication to the fifth plea, by which it appears the goods were condemned by a competent and proper tribunal, in fact, rendering the justification pleaded by the b< fendant still more conclusive.

The rejoinder to the replication tc the fourth plea explains the facts stated in the replication, which, as efore mentioned, is wholly deficient, and contains no fact by which the defendant could be implicated and the plaintiff having committed the first fault, in pleading,' so that no issue material to the controversy could be tendered y ■ there must e judgment for the ¡.lafendaut on all the demurrers.

Judgment for the defendant.