Hastings v. Wood , 13 Johns. 482 ( 1816 )

Per Curiam,.

This case comes before the court on a writ of error, to the common pleas of Franklin county. The record is accompanied by a bill of exceptions. But the counsel, on the argument, abandoned all objections growing out of the bill of exceptions, and relied entirely upon an alleged defect in the second count in the declaration. This is a special count, for having fraudulently procured certain cattle belonging to the plaintiff to be seized by a custom house officer, under a pretence ■that they were about to be smuggled into Canada, contrary to the laws of the United States ; and alleged, that in consequence of such fraudulent conduct, the said cattle were converted arid disposed of to the use of the United States. This, as is contended on the part of the defendant, is equivalent to an averment, that the cattle were condemned as forfeited to the United States, and, of course, that the plaintiff had no interest or title to them. This allegation will not fairly warrant the construction, that the' cattle had been condemned as forfeited, but only that by the representations of the defendant, they had been seized and taken possession of by an officer of the United States, under a pretence of their being forfeited, and by such seizure were converted and disposed of to the use of the United States, and the plaintiff thereby deprived of them; We ought not to pretend, after verdict, that there was any proof or suggestion- upon the trial of a condemnation. The judgment of the court below must, accordingly, be affirmed. ,

Judgment affirmed.