Van Brunt v. Schenck , 13 Johns. 414 ( 1816 )

Thompson, Ch.„J.,

delivered the opinion of the court* T-his-ease, as it now appeal’s before the court, differs essentially-from the former. (11 Johns. Rep. 377.) Van Beuren, Whé,in fact, made-the seizure, testifies, that hethad general orders to-seize a’llsüspícious vessels. From whom these "orders were received hó does not state. ; But lie says he reported the seizure to the de» fondant, who approved of what he had done. ■' This was acora» píete ratification and adoption of the act of seizure, and puts the defendant in the same situation as if he himself ¡had made the seizure, and the .'question then arises, whether the subsequent use of the vessel, by the defendant, made him' such a trespasser, ab initio, as to make him responsible for the full value of the schooner at the time of seizure. The decision of this question walk I think, depend entirely upon the legal effect and operation of the certificate of reasonable cause of seizure, given • on the acquittal of the vessel, independently of this certificate* the case, would fall within the rule, that the abuse of an authority given by law makes the abuser a trespasser, ab initio¿ The reason of this rule, and Why it does not apply equally to an abuse of án■ authority in fact, does" not seem very satisfactorily explained in the books'. It is sometimes said that the law. intends from the subsequent tortious act, that there was, from the beginning, a design of being' guilty of an abuse’of the authority. At other,times,,it is made to rest upon the general reasonable-' ¿ess of the rule, that where the law has given an authority it should, in order to secure such persons as are the objects of the authority "from thé abuse thereof, make everything done, void, when it is abused, and leave the ahuser in the same situation ás if he had done every thing' without any' authority. But whatever may be the reason of the rule, it is founded, in some measure, in fiction, and this fiction must not-be made td work injustice in the face of the express provision of the act of congress (March 2, 1799.) which declares, that where there is a certificate of.cause of seizure? the person who made the se&ai^íffe,'tíffe;f)rosec¿tor, shall ,not be liable to action, suit, or judgment, on account of such seizure. This certificate does not shield the person making the seizure from responsibility, for damages which' niay be occasioned by any subsequent abuse of bis aüthority. I.t only goes to protect hiin from an action on account of the seizure. That is„ if there was reasonable cause for the seizure, the person making it shall not, for such act, be deemed, in any manner, responsible. But, to make the defendant a trespass.br, ab initio, is making him responsible , for the act of seizure, for which the statute declares he shall-not ■ be answerable». This Construction givei fail force and effect to the certificate of reasonable cause, and still makes the seizing officers liable for all injury occasioned by an abuse of their authority. Any other construction renders this certificate a nullity. The seizing officer is, by this certificate, put in the situation of a person who is guilty of an abuse of an authority in fact, who does not thereby become a trespasser, ab initio, but is liable to make satisfaction to the owner of the property for the abuse of his authority. The object which this act of congress had in view is very analogous to the one provided for by our statute as to irregular distresses, (1 N. R. L. 436.,) which declares, that when any distress shall be made for rent justly due, and any irregularity or unlawful act shall be after-wards done, the party making it shall not be deemed a tresspasser ab initio, but the party aggrieved may recover full satisfaction for the special damages sustained, and no more, in an action of tresspass on the case. ' '

To make the defendant responsible, for all damages, which the abuse of his authority has occasioned, and no more, will be doing ample justice to both parties, and affording that protection to public officers contemplated by the act of congress. But to make the defendant liable to the full value of the vessel at the time of seizure, by affiction of law, which, may, perhaps, make him a trespasser ab initio, would be carrying the fiction farther than reason and justice would warrant. I should incline to think a special action on the case, for the actual damage sustained by the Use of the schooner, would lie, and would be the fit and appropriate action. The reasonable cause for the seizure, which the certificate shows, ought to be considered as making that act lawful, and the injury to the plaintiffs is, therefore, mediate and consequential, and so not a proper case for an action of trespass.

There is another fact disclosed in this case which did not appear in the former, and which would seem to furnish an answer to the claim set up in this action, for the value of the schooner. By an order of the district court, made with the consent of the proctor for the claimants in that court, (and who are the plaintiffs.here,) the vessel, was sold, and the money paid into court, to abide the event of the suit, this money, by-the decree dismissing the libel filed in the cause, was ordered to be paid over to the claimants, which has been done, as appears by the receipt of their proctor, bearing date the 7th of January, 1810. This ought to be considered an affirmance of the proceedings, and an election, to take that which, ■ by the consent of parties, was made the substitute for the vessel. (20 Vin. Ab. 528. pl. 4.) Independently, however, of this circumstance, I think the defendant cannot be made a trespasser, ab initio, but is only liable in a special action on the case, for whatever damage the plaintiffs have sustained, by the use of the vessel by the defendant, contrary to his duty as a public officer; and that the motion to set aside the nonsuit must, accordingly, be denied.

Van Ness, J., dissented.

Motion denied.