#### James Dennie *versus*Samuel D. Harris.

Although the authority of the Supreme Court of the United States is supreme where it has jurisdiction, yet before executing its mandate upon the reversal of a judgment of a state court, the state court may look into the proceedings, in order to have a revision of the decision, in case it shall be of opinion that the court of the United States has assumed jurisdiction by mistake.

The lien of the United States for duties is restricted to the specific goods on which the duties have accrued.

Goods held by a collector to enforce payment or security for the duties, are not liable to be attached at the suit of a private creditor of the importer.

Where a sheriff made a supposed attachment of goods on which the duties had not been paid nor secured, and offered to pay the duties, which offer the collector declined, and the goods being put into the customhouse stores, the public storekeeper gave the sheriff a certificate that he held them subject to the sheriff’s order, it was decided that the sheriff could mt maintain trover against a person who sub* aequently took them, the certificate of the store-keeper being illegal and void, and the sheriff having no actual possession.

Trover.* A case stated by the parties was turned into a special verdict, in which the following facts were found. The merchandise described in the declaration was brought from a foreign port to the port of Boston, consigned to George De Wolf and John Smith. Soon after the arrival of the vessel, the collector of the port caused an inspector to be placed on board. Previous to this, the plaintiff Dennie, as a deputy of the sheriff of Suffolk, attached the merchandise as the property of De Wolf and Smith, by virtue of writs of attachment in favor of several of their creditors. At the time of the attachment the plaintiff offered to give the collector security for the payment of the duties ; which the collector declined accepting. About seventeen days after the attachment, the merchandise being in the customhouse stores under the following agreement, viz : — “ District of Boston and Charlestown. Port of Boston, August 29, 1826. I certify that there has been received into store from on board the brig Rob Roy, &c. the following merchandise, &c. lodged by D. Rhodes jun. inspector, under whose care the vessel was unladen. B. H. Scott, public store-keeper. I hold the above described twenty-three cases of silks subject to order of James Dennie esq. deputy *371sheriff. B. H. Scott : ” — the defendant Harris, being the marshal of the United States for the district of Massachusetts, attached and took the same merchandise by virtue of several writs in favor of the United States against De Wolf. These writs were founded on bonds for duties given by De Wolf and Smith, amounting to a sum much larger than the value of the merchandise, which were due and unpaid at the time of the arrival of the vessel. De Wolf and Smith were at the same time jointly and severally indebted to the United States on various other bonds for duties, which were then due.

Upon these facts the Court, in 1827, gave judgment in favor of the plaintiff; 5 Pick. 120 ; whereupon the cause was removed by a writ of error into the Supreme Court of the United States, where, in January 1830, the judgment was reversed, and a mandate was issued to this Court to render judgment upon the verdict for Harris the defendant.

Dunlap,

District-Attorney of the United States, now moved the Court that the mandate might be carried into effect.

*Shaw*and *Bartlett*opposed the motion,

because the opinion of the Supreme Court of the United States (3 Peters, 292) does not cover the ground taken by this Court in 5 Pick. 120. It was contended, that under the act of Congress of March 2d, 1799, c. 128, § 62, the government had a lien on the merchandise for the duties due from the same importers on other goods. This Court held that there was not such a lien, and in this they are sustained by the Supreme Court of the United States. Another point made was, that the goods could not be attached, because of the lien for the duties on the specific goods. This Court held that they were attached defacto, and that a stranger taking the goods out of the plaintiff’s possession, could not set up in his defence the lien of the United States. *Gibbs*v. Chase, 10 Mass. R. 129 ; *Ladd*v. *North,*2 Mass. R. 514 ; *Ludden*v. Leavitt, 9 Mass. R. 104 ; *Perley v. Foster,*ibid. 112; *Warren*v. *Leland,*ibid. 265; 2 Sanders on Pl. and Ev. (Philad. ed.) 470. The Court of the United States decide that goods subject to a lien for duties are not attachable ; which is not adverse to the decision of this Court. It is expressly said by this Court, that the question whether the goods were attachable or not, did not present itself in the case. *372The- plaintiff is answerable to the United States in trespass for making the attachment ; but as against a stranger he would have a right to the goods, even if he had taken them without any legal process. The marshal is a stranger in this case, though he is an officer of the United States. To give the Supreme Court of the United States jurisdiction, the act of congress must not only be drawn in question, but it must be material to the title, and the decision of the state court must be adverse to the title set up under the act. To show that this Court were not bound to render implicit obedience to the mandate, without examination into the grounds of it, the counsel cited *Martin*v. *Hunter's*Lessee, 1 Wheat. 304.

*Dunlap, contra,*

remarked that the court of the United States, having all the facts of the case before them on the special verdict, might have rendered judgment in favor of the defendant, and that it was from respect to this Court that a mandate was issued. 6 Cranch, 285, note; *M‘Culloch*v. *Maryland,*4 Wheat. 437 ; *Dartmouth College*v. Woodward, ibid. 518 ; Act of Congress, 1789, c. 20, § 25. No benefit can accrue to the plaintiff from resisting the mandate, since the judgment is reversed, and if a new writ of error is made necessary, the court of the United States can at most only review the *reasons*of their decision ; which would not affect the judgment. *Martin*v. *Hunter's Lessee,*1 Wheat. 355 ; *Cohens*v. *Virginia,*6 Wheat. 381, 413, 414 ; Rawle on Constitution of U. S. 237.

The court of the United States had jurisdiction of the case, as here was “drawn in question the validity of an authority exercised under the United States, and the decision was against its validity,” and “ the validity of an authority exercised under a State, as being repugnant to a law of the United States, and the decision was in favor of its validity.” That court have a right to determine not only the construction, but the effect of an act of congress. They could say here, not only that the attachment of the plaintiff was void, but also that this action cannot be sustained. The mandate cannot be evaded because the case involves other questions than those which give jurisdiction to the court of the United States. *Osborne*v. *Bank of U.*S. 9 Wheat. 733 ; Rawle on Const. 241.

*373The goods in question were not subject to attachment by the plaintiff. Big. Dig. *Attachment, A*; *Lane*v. *Jackson,*5 Mass. R. 157. This Court say the goods were lawfully in the possession of the deputy sheriff, by his attachment; but the court of the United States say the attachment was void ; so that the foundation of the first decision is taken away.

That the deputy sheriff had not actual possession, is manifest ; the attachment was in paper merely ; nor had he any special property. The certificate of the store-keeper was a nullity. The plaintiff had neither a right of property nor a right of possession ; both of which are necessary to sustain an action of trover. 2 Wms’s Saund. 47 *a,*note 1 ; *Ludden*v. *Leavitt,*9 Mass. R. 104; *Warren*v. *Leland,*ibid. 265 ; *Commonwealth*v. *Morse,*14 Mass. R. 217 ; *Gordon*v. *Harper,*7 T. R. 9.

*

 In the report of this case in 5 Pick. 120, (1st ed.) the action is erroneously stated to be *trespass.*

*Per Curiam.*

Some question has been made in respect to the effect of mandates like the one now attempted to be enforced. We are all fully of the opinion, that where the Supreme Court of the United States have jurisdiction, their authority is supreme. At the same time, this Court is not to be considered as a mere machine, to execute the decrees of the Supreme Court of the United States, without power to inquire into the grounds of their proceedings, in order to ascertain whether they may not inadvertently have made a mistake.

This action is trover for taking goods previously attached. It was tried on the question, whether, supposing the attachment valid, the officer of the United States, on a precept of the United States, could take the goods out of the possession of the plaintiff, and whether there was a lien for duties on other goods, which would vacate the attachment.

This Court thought that the lien was restricted to the duties on the particular goods, and this opinion is affirmed by the Supreme Court of the United States.

This Court were of opinion, that as the plaintiff had possession of the goods, the United States officer could not lawfully take them out of his hands. The court of the United States considered that there was no possession in the plaintiff. So far as the opinion of that court goes, that the goods were not liable to attachment by the plaintiff while they were in the *374custom-house, it is conclusive upon us. Admitting that there was no lien and that the plaintiff had actual possession, whether the taking of the goods by the defendant would not sustain an action of trover, we suppose would be a question for this Court, and not reversible by the court of the United States. Then the question is, whether there was an actual possession by color of authority. Though the special verdict says there was an attachment, „and if it said nothing more, possession would be inferred, yet if the jury go on to state other facts which show there was no possession, the inference from the attachment will be controlled. Here the facts are, that the goods were in the custody of the United States officer at the custom-house, and that the duties on them were not paid nor secured. Under these circumstances Dennie had no actual possession. The only answer to this is, that the public storekeeper says he holds the goods subject to the order of Dennie. But that was a breach of duty. He received the goods as store-keeper, and he was bound to hold them for the United States. His certificate was a void act, and the deputy sheriff could claim nothing under it. We presume it was on this ground that the court of the United States decided; and on this ground we are all of opinion, that there was no right to attach and no possession on the part of the deputy sheriff. If there had been an actual possession, which by our law would sustain trover, we should have been inclined to have the decision of the court of the United States revised.1

*Judgment on the verdict for the defendant.*

1

**See *Souhegan Factory*v. *M'Conike, 7*N. Hamp. R. 323.