# Averill v. Smith

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United States Supreme Court
84 U.S. 82
Averill v. Smith
ERROR to the Circuit Court for the Northern District of New York.
AN act of Congress of February 24th, 1807, enacts:
'That when any prosecution shall be commenced on account of the seizure of any ship or vessel, goods, wares, or merchandise, made by any collector or other officer, under any act of Congress, authorizing such seizure, and judgment shall be given for the claimant or claimants, if it shall appear to the court before whom such prosecution shall be tried, that there was a reasonable cause of seizure, the said court shall cause a proper certificate or entry to be made thereof; and in such case the claimant or claimants shall not be entitled to costs, nor shall the person who made the seizure, or the prosecutor, be liable to action, suit, or judgment on account of such seizure and prosecution; provided, that the ship or vessel, goods, wares, or merchandise, be, after judgment, forthwith returned to such claimant or claimants, his, her, or their agent or agents.'
The 89th section of the Customs Act of March, 1799, contains a provision substantially the same.
These statutory provisions being in force, one Smith brought trespass against Averill, a collector of internal revenue, for taking and carrying away certain barrels of whisky.
The defendant pleaded not guilty, and gave notice, under the practice of the second circuit, of his defences.
The case was tried, and a special verdict found as follows:
'That the defendant, being a collector of internal revenue, on the 4th of February, 1868, seized as forfeited to the United States, and carried away, and deposited in a storehouse at Corning, the whisky mentioned; the same then being in the possession of and owned by the plaintiff; that an information was filed against the same in the District Court of the United States for the said district; that on the 15th of May, 1868, a deputy of the marshal of the district presented to the defendant a process of the said District Court, commanding him, the said marshal, to seize the said property; that the marshal made return that on the 4th of May, 1868, he did seize and attach the said property, and had duly cited all persons to appear and assert their claims thereto; that he did not at any time notify to the person having possession of, and in whose warehouse the said whisky was stored by the said defendant, that he, the said marshal, had taken possession thereof; that a claim and answer to the said property was put in by Smith, the plaintiff, as owner thereof; that a trial was had and a judgment entered that the property did not become forfeited, but that the same belonged to said Smith, the plaintiff; that afterwards, the said court adjudged and certified that there was probable cause for the said seizure; that the plaintiff had never made claim of the defendant for the said property except by bringing the said action; neither had said property, or any part thereof, ever been returned to the plaintiff, nor had any offer been made to return the same, but that the same still remained in such storehouse at Corning aforesaid.'
On this verdict judgment was entered for the plaintiff, and to review that judgment the defendant prosecuted this writ of error.
Mr. G. H. Williams, Attorney-General, and Mr. C. H. Hill, Assistant Attorney-General, for the plaintiff in error:
Upon the facts shown by the special verdict, an action of trespass will not lie against the defendant.
The second resolution in the Six Carpenters' Case, was 'that not doing cannot make the party who has the authority or license by the law a trespasser ab initio, because not doing is no trespass; and, therefore, if the lessor distrains for his rent, and thereupon the lessee tenders him the rent in arrear, &c., and requires his beasts again, and he will not deliver them, this not doing cannot make him a trespasser ab initio.' This principle has been universally recognized. In West v. Nibbs, it was held 'that a landlord who has accepted the rent in arrear, and the expenses of the distress, after the impounding, cannot be treated as a trespasser merely because he retains possession of the goods distrained, although his refusal to deliver them up to the tenant may amount to a conversion so as to render him liable in trover.' And Gardner v. Campbell, Smith v. Egginton, Waterbury v. Lockwood, Jacobsohn v. Blake, and other authorities collected and to be seen in the last edition of Smith's Leading Cases, affirm this rule. The certificate of probable cause showed that the original seizure of the goods was lawful, and threw the onus probandi upon the claimants.
There was an omission, too, in the judgment of the District Court to make any order in respect of the return of the goods. The goods were not in the possession of the collector. The marshal had taken them out of his possession by order of a writ directed to him; and, of course, thenceforth they were in possession of the court. The collector had nothing more to do with them. He could not return them to the plaintiff. The goods being in possession of the court, the plaintiff should himself have come into court and asked to have them back, when he would have received them as of course.
But whatever effect this absence of an order in respect to the return of the goods may have had upon the rights of the parties on the judgment in the District Court, it was necessary for the owner to have taken active measures in some form to recover his property, and to have encountered a refusal; and, without deciding whether he has a remedy in trover or replevin, it is clear on the authorities that the present action will not lie.
Mr. M. W. Cooke, contra:
The case shows a trespass. The defendant, without process, seized, took, and carried away plaintiff's property. The cases cited on the other side, save one, were for acts of officers proceeding upon execution or process of the court. In Gardner v. Campbell, the defendant took the plaintiff's goods under and by virtue of an execution, and it was decided, simply, that replevin would not lie. This case has no bearing except to show that plaintiff herein could not have replevied the goods if the position of plaintiff in error is correct.
In Smith v. Egginton, and Waterbury v. Lockwood, the defendant, an officer, was acting under process of the court directing the seizure of the goods of defendant named in the process. The court seized them. The case of Jacobsohn v. Blake, so far as it has any bearing, is against the position claimed. The officer there did not seize the goods, and it was upon this ground that the judges decided the case. Tindal, C. J., says:

## Notes

* ↑ 2 Stat. at Large, 422.
* ↑ 1 Id. 696.
* ↑ 8 Reports, 146; S.C.., 1 Smith's Leading Cases, 216.
* ↑ 4 Common Bench, 172.
* ↑ 15 Johnson, 401.
* ↑ 7 Adolphus & Ellis, 167.
* ↑ 4 Day, 257.
* ↑ 6 Manning & Granger, 918, 924.
* ↑ Seventh edition, vol. 1st, note to The Six Carpenters' Case.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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