The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1866-07-19
IMPORTANT COTTON DECISION.
UNITED STATES CIRCUIT COURT
Before Judge Nelson


State courts The facts are these:-In January and
February 1885, the Treasury agents the United States
seized In the State OF Georgia large quantity OF
cotton, claimed to DO conhscable and abandoned
property under various laws OF the United States
These agents, under direction or the Treasury De-
partment, shipped this cotton TO Simeon Draper.
United States cotton agent to be disposed OF by him
for the benefit of the the arrival or the
cotton here replevn suits brought by Dennstoun
Co., claiming to be the Of the property by pur
chase in the South BY which suits they took possession
of the cotton at this stage Of the Mr. Courtney
United States District Attorney Hled writ OF oertiorar
under the "force act Of 1885, and also took proceed
ngs under the socaed habeas corpus oct Of 1888 by
which the removed from the Supreme Court
OF the State Of New York to the United States Circuit
Court then Mr. Draper retook the cotton; the plain.
tins made motion before Judge Nelson on
the 22d Of May last, for order Remaining
these suits to the Supreme Court Of the State for trial. on
the ground that the removal was Illegal and that Mr.
Draper was o mere trespasscr the premises Judge
Nelson has just rendered his opinion, as given below
II proper to say that there one hundred and
cided 10 this case and the involved In all the
suits Is said to be upwards Of ten millions or dollars
United Gates Court for trial The opinion will also be of
great interest to the legal profession settling ques.
ton OF practice in the removal Of suits by Of cero
rar from the state tribunals to the Circuit Court OF the
United States.
Decision.
This is motion in three actions of repIcvin brought
by the plaintiffs against the defendant in the Supreme
Court of the State of New York OF
some four hundred and sxtyone bales of cotton. The
defendant has taken proceedings to remove the litigation
into this court The motion, che part of the plain
tGs is to test the legality of these proceedings and to
remand the back to the State court The second
OF the act OF March 1888 "A St at L. 1897,
provides that the jurisdiction of the circuit courts
law and equity arising under the revenue laws of
the United states &c, and the third section,
That in any wh.re suit shall be brought
in state court against any officers or other person
for account of any act done under the revenue
laws Of the United States under color thereof
account Of any right authority title set up claimed
by such officer other person under any such law of the
United States, il shall he lawful for such defendant ut
any before trial upon petit the circuit court
in and FOR the district in which he has been served with
process setting forth the of the suit and verifying
the petition BY affidavit together with certificate of
attorney counsel setting forth that counsel for the
petitioner he has examined the proceedings. against him.
aud has carefully inquired into all the matters set forh
in the petition and that he believes the same to be true
VII CHI petition &C. shall be presented to the said circuit
court &c, and shall be filed in the .ofce OF the clerk
ami the cause shall thereupon be entered upon tho
Of the court shall DO thereafter proceeded
n rs cause originally commenced III that court. The
ora to the State court requiring the same to send 70
the circn tho record and proceedings in the cause
and thereupon shall he the duty of the state court 70
stay all further proceedings in such cause and the same
shall be deemed and taken to he removed TO the said
circuit and any further proceednos, trial judgment
in the state court shall be null and void Tho
defendant IN these actions claims that he was an
officer under the revenue laws OF tn, United
States, having been appointed by tho Secre-
tary Of the Treasury in pursuance OF law,
and That he in possession Of the cotton and held il
as captured, abandoned aud conhscahle property.
Congress of July q iS04 March D. 1858, ami August O.
1851 and has taken the proper proceedings for the
Urcait Court under the act or 1888 usually caed the
Force Act As already stated, this mot on has been
made to remand the Causes back 70 the stat Court OF
thai tho defendant did not hold the cotton al the time
OF the repevin suits in the state Court officer of
the rcvenac law nor az person anthorizod 70 hold
Under the same: but, on the contrary hold Il wrong
fully and IN violation OF tho rights OF the plaintiffs tho
agree the petition and afdavit with the certificate
OF counsel failed ~ bring the causes within tho act OF
Congress providing for the removal would be the duty
OF the Court on motion, 10 remand them aud such
order has also not unrequcntiy boon entered In
where appeared clearly by the admission OF the parties
or Otherwise, that they wore not within the act Of
movai but in whore the proceedings IN
formity with tho act the removal imperative. both
upon the StateAnd the Circuit Court; and " tho facts
are seriously contested they must DO In formal
by peadings aud proofs in tho latter court Tho
and must DO heard and determined there Tho
statute Ia porcmptory, that the cause shall thorc.
upon % entered on tue docket Ks ., SAD Court and
commenced In that Court"-"and shall he deemed,
and taken TO DO moved TO said Circuit Court and any
State Court shall be wholly null and void II is true
the plaintiff attcr the removal OF the into the
Circuit has means. according to the course Of pro-
cecdng in that court 10 raise The question OF jursdc
ton upon the picadngs and which disability doubtiess
furnishes some pausbiy OF reason for the hearing Of
the question upon motion But this mode or presenting
IT, which be upon a0idavits oitcntimcs ndcting
and iricconciahlc. most unsatlsfactory and should
not be entertained unless IRON unavoidable necessity
with view TO ascerta the appropriate ribu
nal to hear and determine the We
a-e of opinion no such necessity exists On tho
contrary, the very circumstance that tho plaintiff
have no opportunity 10 present tbc question upon
s"f 81 n" cSecson 70 the ,ardcon IN any stage o
the trial IT, when the evidence Is ciDscd, II sils ap
pear that tho cause were such as not 10 como within the
is duty instruct the jury tba, the court had urs
dcton OF them, and 10 remand the same back TO the
state court The case OF Pollard and Pckctos Dwight ct
al "a Cranch 42i-4os) Is an authority for this view
That tho case OF a removal under the twelfth
section Of TIE 'ad nsi.a.o Act Tho objection WA.
circuit and Chief Justice Marshall after overriding The
objection, observed -"werc Il otherwise, the duty Of
the Circuit Court would have been 10 remand the
10 the STATIC court in which was instituted and this
court would be bound now to direct that proceeding "
tSse also Diggs and Keith wolcott, Lib p. 1871 In
where original jurisdiction 10 conferred directly
upon the G rcuN Court the Second section Of the
received an injury for an act done IN protection OF tho
revenue laws, the Jurisd.cional question, whether
or not the act was done within the meaning OF
the statute, may he raised by plea in abatement, or
10 the jurisdiction. II has sbcen held that 1t
spcc's the citizenship OF the parties ngrcden, OF
jurisdiction advantage be taken only by the proper
plea abatement a Peters, p. 456) Whether this
principle Is applicable 20 objection founded upon
every other onai fact Is queso which 10 far
know, has not yet been decided But the prin
cple has Application TO the csss OF original lurisdc
ton acquired indirectly by removal from the state
court TO this court the defendant then IS concerned
80 far the question ~ the removal IL involved. TO
ma ntan the jurisdiction. And as We have seen
the plaintiff. the removal, has opportunity
according TO the practice of the court, pre-
sent the question upon the pleading. Although the
act gives 20 the person the right to In this
for injury 10 his person or property for an act
done in protection 81 the revenue, does not give the
same right 10 the party claiming 70 have sustained an
injury from such person and hence the only judicial
remedy Is by suit in the State court, subject 10 tho in
direct original Jurisdiction OF this court where
II Il given by removal into H. The causes therefore. In
question properly instituted in the State court
leaving the only question for consideration this motion
20 the legal effect of the removal; and TO that
OF opinion inasmuch as the act OF Congress
has been fully complied with, u ~ not proper. ~
competent for this court determine the disputed
jursdct facts Involving the right or legality of
the removal upon motion; aud that inasmuch a. the
question OF jurisdiction involving them be raised
upon the pcadng the proper place 10 hear aud deter
10 he M "