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III. SEIZURE.

[See MARITIME Law; Revenue.]

§ 156. Validity of — What constitutes.— A seizure to be valid must be open, visible, continuous and persisted in until the property seized is transferred to the custody of the law. A superior physical force is not necessary to be employed if there is a voluntary acquiescence in the seizure and dispossession; but the parties must understand that they are dispossessed and no longer at liberty to exercise dominion on board the ship. The Josefa Segunda,* 10 Wheat., 312.

§ 157. A seizure to be effectual must be followed by subsequent prosecution or proceedings. A seizure voluntarily abandoned loses all its validity and becomes a complete nullity. Ibid.

§ 158. By seizure, in the ninth section of the act of congress of 1799 (1 Stat. at Large, 76), is meant any taking possession of the thing forfeited by virtue of a warrant or other legal authority, for the purpose of enabling the proper court to inquire into, and to adjudicate upon, the cause of forfeiture. The Washington,* 7 Law Rep. (N. S.), 497.

§ 159. Before property can be condemned upon a forfeiture, in rem, there must be a seizure; and this seizure must be alleged. Evidence of communications between the collector of the port, the secretary of the treasury and the district attorney, and the filing of the libel by the district attorney, in conformity with the instructions of the collector, in connection with the fact that the vessel was, at the time, in the collection district, and that this was known to the collector, does not constitute a sufficient seizure. The Schooner Silver Spring, 1 Spr., 551; 17 Law Rep., 264. § 160.

single act, not continuous.-A seizure to enforce a forfeiture is a single act and not continuous. Hence, where a state statute provided for the giving of information, as to the seizure of a boat or vessel unlawfully used in dragging clams, "to two justices of the peace of the county where such seizure shall have been made, held, that the literal seizure of the vessel having taken place in a certain county, only the justices of that county could take jurisdiction of the case, and that the conveyance of the vessel, by the persons making the seizure, into another county, where the same was brought to land, did not continue the seizure into such county, so as to give the justices thereof jurisdiction of the case under the statute. Thompson v. Whitmann, 18 Wall., 457.

§ 161.

how determined. The question whether the seizure of a vessel as forfeited to the United States is rightful or tortious belongs exclusively to the federal courts, and can only be determined by the final decree of such courts in all cases where some law authorizes a seizure of the subject. In the absence of any such law the rule would not apply. Slocum v. Mayberry,* 2 Wheat., 1.

§ 162. Who may make.— Under the act of March 2, 1807 (2 Stat. at L., 428), providing for the forfeiture of vessels or cargoes seized for being engaged in the slave trade, the seizure may be made by any person, but the forfeiture is by the terms of the act for the use of the United States, and the officer or person making the seizure is entitled to no share therein. The Josefa Segunda,* 10 Wheat., 312.

§ 163. At common law any person may, at his peril, seize for a forfeiture to the government, and if the government adopt his seizure, and the property is condemned, he is justified. By the act of February 18, 1793, officers of the revenue are authorized to make seizures of any ship or goods for any breach of the laws of the United States. Gelston v. Hoyt, 3 Wheat., 246. § 164. Any citizen may seize any property forfeited to the use of the government, either by the municipal law or as a prize of war, in order to enforce the forfeiture; and it depends upon the government whether it will act upon the seizure; if it proceeds to enforce the forfeiture by legal process, this is sufficient confirmation of the seizure. The Caledoniana, 4 Wheat., 100.

§ 165. Where and how must be made to give jurisdiction.—To authorize any district court of the United States to adjudicate upon a cause of forfeiture of a ship, such ship must be taken possession of, or seized by the process of the court; and to give such court jurisdiction to adjudicate upon the cause of forfeiture, the first seizure or taking possession, by some one having legal authority, must be made within the limits of the district in which the court is established, unless the first seizure is made upon the high seas, in which case the ship must be brought within such limits. The Washington,* 7 Law Rep. (N. S.), 497.

166. A seizure by the marshal, upon a warrant issued by the court, is sufficient, under the ninth section of the act of congress of 1799 (1 Stat. at Large, 76), to enable the court to adjudicate upon a cause of forfeiture, unless there has been a prior legal seizure in some other district, or a seizure on the high seas, and the property brought into some other district. A

seizure by a custom-house officer is not an essential prerequisite to give the court authority judicially to inquire into the cause of forfeiture. Ibid.

§ 167. Refusal of seizing officer to ascertain the forfeiture — Remedy of claimant.— If the seizing officer should refuse to institute proceedings to ascertain the forfeiture of the vessel seized, the district court may, upon the application of the aggrieved party, compel the officer to proceed to adjudication, or to abandon the seizure. And if the seizure be finally adjudged wrongful, and without reasonable cause, he may proceed, at his election, by a suit at common law, or in the admiralty, for damages for the illegal act. Slocum v. Mayberry,* 2 Wheat., 1.

§ 168. Property seized and bonded can only be seized for subsequent acts.- Where property is seized as forfeited to the government, and is bonded and returned to the claimants, the lien of the government thereon is gone, and it is entirely free from liability to further seizure for the causes assigned for the forfeiture; but, like any other property, it may be forfeited if subsequent cause therefor arise, and such forfeiture would be solely by reason of such subsequent cause, and would in no manner affect the claim of the government in the proceeding in which it was bonded. United States v. Eighteen Barrels of High Wines, 8 Blatch., 475.

§ 169. Liability of party making seizure-Justification.- A plea alleging a seizure for a forfeiture as a justification should not only state the facts relied on to establish the forfeiture, but aver that thereby the property became and was actually forfeited, and was seized as forfeited. Gelston v. Hoyt, 3 Wheat., 246.

§ 170. If a suit be brought against the seizing officer for a supposed trespass while the suit for the forfeiture is depending, the fact of such pendency may be pleaded in abatement or a temporary bar of the action. If after a decree of condemnation, then that fact may be pleaded as a bar; if after an acquittal, with a certificate of a reasonable cause of seizure, then that may be pleaded as a bar. If after an acquittal, without such certificate, then the officer is without any justification for the seizure, and it is definitely settled to be a tortious act. If to an action of trespass in a state court for a seizure, the seizing officer plead the fact of forfeiture in his defense without averring a lis pendens, or a condemnation, or an acquittal, with a certificate of reasonable cause of seizure, the plea is bad; for it attempts to put in issue the question of forfeiture in a state court. Ibid.

§ 171. Property was seized by a collector of internal revenue for an alleged violation of the internal revenue laws, and was libeled for forfeiture in the United States district court, the cause tried, verdict given for the claimant, and certificate of probable cause granted. Upon suit brought by the claimant against the collector to recover the value of the property so seized and never returned to him, held, that a certificate of probable cause is no defense in such an action unless the collector shall have forthwith returned the seized goods to the claimant. Smith v. Averill,* 10 Int. Rev. Rec., 139.

§ 172. A plea justifying a seizure and detention by virtue of the seventh section of the act of 1794, under the express instructions of the president, must aver that the naval or military force of the government was employed for that purpose, and that the seizor belonged to the force so employed. The seventh section of the act was not intended to apply except to cases where a seizure or detention could not be enforced by the ordinary power, and there was a necessity, in the opinion of the president, to employ naval or military power for this purpose. Gelston v. Hoyt, 3 Wheat., 246.

§ 173. Where a seizure is made for a supposed forfeiture, under a law of the United States, no action of trespass lies in any common law tribunal until a final decree is pronounced upon the proceeding in rem to enforce such forfeiture; for it depends upon the final decree of the court proceeding in rem whether such seizure is to be deemed rightful or tortious, and the action, if brought before such decree is made, is brought too soon. Ibid.

§ 174. Certificate of probable cause, when given.- The seizure of a vessel, which, under a cod-fishing license, had incidentally caught mackerel, is a municipal seizure expressly provided for by acts of congress as justifiable, if a certificate of probable cause is given; and a certificate of probable cause will be given, if the officer making the seizure acts in good faith, and has reasonable grounds to suppose that the law has been violated. United States v. Schooner Reindeer,* 14 Law Rep., 235.

§ 175. Constructive seizure, evidenced by stipulation of counsel, is sufficient to authorize an order for a certificate of probable cause of seizure under the eighty-ninth section of the act of congress of March 2, 1799 (1 U. S. Stat. at Large, 696). United States v. Brig Henry, 4 Blatch., 359.

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SUMMARY

IV. DISTRIBUTION OF PROCEEDS.

- In general, § 176.- Acts of 1799 and 1846, § 177.- Disputes as to shares, where decided, § 178.

§ 176. The proper practice, under the act of March 2, 1867 (14 Stat. at L., 546), is for the court to cause the money in court for fines, penalties or forfeitures, to be paid to the collector, to be by him, after proper deductions have been made, paid into the treasury and distributed under the directions of the secretary of the treasury to the persons and in the proportions prescribed by the court. United States v. George, $$ 179-181.

$177. The act of August 6, 1846, contains no provisions giving, to any person, any share of any forfeiture for the violation of that act, and no provision respecting the disposition of the proceeds of such forfeiture. The provisions of the act of 1799 refer solely to forfeitures for a breach of the act itself, but the act of March 2, 1867, applies to the proceeds of all forfeitures incurred under the provisions of any laws relating to the customs, and hence applies to and controls the disposition of forfeitures under the act of 1846. Ibid.

$178. The court having custody of a fund derived from forfeitures or penalties is the proper forum to entertain and decide disputes as to shares in the fund, and to direct how it shall be distributed, and to what persons, under the act of 1867, under the directions of the secretary of the treasury as a ministerial officer. Ibid.

[NOTES.-See § 182-194.]

UNITED STATES v. GEORGE.

(Circuit Court for New York: 6 Blatchford, 37-47. 1868.)

STATEMENT OF FACTS. A judgment had been rendered against George for a large sum of money for penalties incurred by a violation of laws governing duties on imports. A claim was made for a share by a person professing to be the informer through whom the forfeiture had been secured.

Opinion by BLATCHFORD, J.

The first section of the act of March 2, 1867 (14 U. S. Stat. at Large, 546), provides that, "from the proceeds of fines, penalties and forfeitures, incurred under the provisions of the laws relating to the customs, there shall be deducted such charges and expenses as are, by law, in each case, authorized to be deducted, and, in addition, in case of the forfeiture of important merchandise of a greater value than $500, on which duties have not been paid, or, in case of a release thereof, upon payment of its appraised value, or of any fine or composition in money, there shall also be deducted an amount equivalent to the duties in coin upon such merchandise (including the additional duties, if any), which shall be credited in the accounts of the collector, as duties received, and the residue of the proceeds aforesaid shall be paid into the treasury of the United States, and distributed under the direction of the secretary of the treasury, in the manner following, to wit: one-half to the United States; one-fourth to the person giving the information which has led to the seizure, or to the recovery of the fine or penalty, and, if there be no informer other than the collector, naval officer or surveyor, then to the officer making the seizure; and the remaining one-fourth to be equally divided between the collector, naval officer and surveyor, or such of them as are appointed for the district in which the seizure has been made, or the fine or penalty incurred, or, if there be only a collector, then to such collector." The section then provides for a different distribution where the information is given by the officer of a revenue cutter. The fourth section of the act repeals specially two sections of two former acts, relating to matters not involving any question arising in this case, and also repeals "all other laws, or parts of laws, inconsistent

with, or supplied by, the provisions of this act," and then provides that "the secretary of the treasury shall prescribe all needful regulations to carry out and enforce the provisions of this act."

§ 179. Terms and construction of the act of congress of March 2, 1799, rela tive to fines, forfeitures, etc., and of other acts on the same subject.

These provisions of the act of 1867 are, to some extent, a substitute for provisions contained in the eighty-ninth, ninetieth and ninety-first sections of the act of March, 2, 1799 (1 U. S. Stat. at Large, 695-697). The eighty-ninth section authorizes the collector, within whose district a seizure is made, or a forfeiture is incurred, for any breach of that act, to receive from the court in which a trial is had of any issue of fact, in any suit founded on any such breach, the sum recovered, after deducting all proper charges, to be allowed by the court, and requires him, on receipt thereof, to pay and distribute the same, without delay, according to law. The ninetieth section requires that the proceeds of sales of property condemned by virtue of the act, and not previously bonded, shall, after deducting all proper charges allowed by the court, be paid by it to the collector of the district in which the seizure or forfeiture took place, as directed in the eighty-ninth section. The ninety-first section provides that all fines, penalties and forfeitures recovered by virtue of the act (and not otherwise appropriated), "shall, after deducting all proper costs and charges, be disposed of as follows: one moiety shall be for the use of the United States, and be paid into the treasury thereof, by the collector receiving the same; the other moiety shall be divided between, and paid in equal proportions to, the collector, and naval officer of the district, and surveyor of the port, wherein the same shall have been incurred, or to such of the said officers as there may be in the said district; and, in districts where only one of the said officers shall have been established, the said moiety shall be given to such officer; provided, nevertheless, that, in all cases where such penalties, fines and forfeitures shall be recovered in pursuance of information given to such collector by any person other than the naval officer or surveyor of the district, the one-half of such moiety shall be given to such informer, and the remainder thereof shall be disposed of between the collector, naval officer, and surveyor, or surveyors, in manner aforesaid." The section then provides for a different distribution where any fines, forfeitures or penalties incurred by virtue of the act are recovered in consequence of any information given by any officer of a revenue cutter. By the seventh section of the act of May 28, 1830 (4 U. S. Stat. at Large, 411), it is provided that all forfeitures incurred under that act shall be distributed according to the provisions of the act of March 2, 1799. The first section of the act of March 3, 1863 (12 U. S. Stat. at Large, 738), provides that property forfeited under that sec tion, or its value, shall be disposed of as other forfeitures for violations of the revenue laws. The act of 1846, which is the only act claimed to have been violated in the present case, contains no provision giving any share to any person of any forfeiture for a violation of that act, and no provision respecting the disposition of the proceeds of such forfeiture. I have been unable to find any provision by statute respecting the disposition of the proceeds of a forfeiture under the act of 1846, or respecting shares in the same, except the provision in the act of 1867. The provisions of the act of 1799 refer solely to forfeitures for a breach of that act itself. The act of 1867, however, applies to the proceeds of all forfeitures incurred under the provisions of any laws relating to the customs. The act of 1846 is a law relating to the customs.

On comparing the provisions of the act of 1799 with those of the act of 1867, in the particulars above recited, the following results appear: In respect to the channel of distribution by the former act, the court is to pay the net amount remaining, after the deduction of proper charges, to the collector of the district, and he is to "pay and distribute the same without delay according to law;" by the latter act it is not provided to whom the court shall pay the net amount, but it is provided that the net amount shall “be paid into the treasury of the United States, and distributed under the direction of the secretary of the treasury," in the proportions and to the persons designated by the act, the act not stating by whom it shall be paid into the treasury. The secretary of the treasury is required by the latter act to distribute the amount according to law quite as much as the collector is required by the former act to distribute the amount according to law. The amount is required by the former act to be distributed under the direction of the collector quite as much as it is required by the latter act to be distributed under the direction of the secretary of the treasury. The provision in the latter act, that the secretary of the treasury shall prescribe all needful regulations to carry out and enforce the provisions of the act (the second and third sections of which relate to the seizure of books and papers in cases of fraud on the revenue, and to the enforcement of liens for freight on imported merchandise in the custody of officers of the customs), gives to the secretary no greater power, in respect to prescribing regulations in reference to the distribution of the proceeds of forfeitures, than the collector had in the same respect, under the former act, in subordination to his superior officers, or than the secretary himself had under that act. The fourth section of the act of 1867 only repeals laws and parts of laws that are inconsistent with, or supplied by, the provisions of the act of 1867. In respect to forfeitures for breaches of the act of 1799, the provision of that act which requires the payment by the court to the collector of the net proceeds of such forfeitures, is not inconsistent with, or supplied by, any provision of the act of 1867. In respect to such net proceeds, the proper construction of the act of 1867 is, that the court is still to pay to the collector, under the eighty-ninth and ninetieth sections of the act of 1799, the amount recovered, after deducting all proper charges allowed by the court. The collector is then to deduct, in proper cases, the amount representing duties named in the act of 1867, and any other lawful charges, and is to pay the residue into the treasury of the United States. There is nothing in the act of 1867 which takes away the right given to the collector by the act of 1799 to receive from the court the proceeds of forfeitures for breaches of that act. So, also, with regard to forfeitures under the acts of 1830 and 1863, and under any other acts which adopt the mode of disposition of forfeitures prescribed by the act of 1799.

In regard to the duties mentioned in the act of 1867, the collector is the proper person, and the only proper person, to ascertain the proper amount representing the duties, and it is impossible that that amount can be, as the act of 1867 requires, "credited in the accounts of the collector, as duties received," unless the collector receives the amount, so as to credit the United States with it in his accounts, as duties received. I think that the act of 1867 intends that the collector shall receive from the court the whole amount, and not merely an amount equal to the duties. The act evidently recognizes the then existing practice, and assumes that the collector will receive from the court the proceeds, less the lawful charges and expenses which the court may

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