The New York herald., 1870-02-03
THE COURTS.
Proceedings I'm the Law Courts
Yesterday.
COndemnati0ns-The Barker DistiIlery
Case-Lager Beer Brewers In TrOu-
ble-The Glasson Divorce Suit
Important to Policy Holders
Death Of Judge MOncrief.
UNITED STATES supM NE COURT.

Action TO Recover Connscated Property
Seized Under the Act OF 1S62-Does tho
Service Of a Writ Of MonitI0n Compel the
Actual Seizure Of Property s-Thc C0nsti.
tuti0unlity Of the C0nnscaiion Act-Dld tho
Law Empower the Government to Levy
War Against the Enemies OF the Nation N
Individualss
WASHINGTON, Feb. 2 1870.
Henry Pelham vs. Ddutd G. Rose ct aL-CeytiRcate
OF Duaston nom the Circuit Court ror the District Of
Ind,Gna.-This case grew out Of the connscation Of
the property Of the plaintiff under tpe act Of July
1864, as fUllows:-The libel Of information was
against promlssory note for $1,000. belonging to
Pelham, dated March l, 1882, and due four years
after date. The writ Of monition was directed to
the Marshal Of ,ne distrlct but deceased), who
by his deputy, returned thar ne had 'arrested the
property" mentioned and had cited oil persons hav
Ing any interest therein. Decree OF condemnation
was passed by default, and the Marshal was authO-
rzed to sell the note winch he did 10 the maker i0r
tue SUN VI $1,000. Pelham now Bued kO5o aud the
sureties 70 recover the amount OF the nOtc alleging
IA5e return 70 the writ OF nonlton, anu averrnK
that he never IN fact seized the note at ALI Dut tat
after It's execution and unt after the decree Of con-
iiscation 1t was Ia his tpenam'sl possession, In
Mason county, kentucky, aud was never within tle
territorial limits Of Indiana. The defendant de-
INJURED, and the Court diirtrng IN opinion ON the
questions raisel certified Shem TO TINS court:-
FIRST. whether upon IacLs stated In the decara
ton, 1t was material aud necessary TO the due aud
legal service of the Wit 0i inontl0n that the Mar
sna should naye actually seized anu taAea into his
custody and unuer his control the note menioneu3 7
second whether The return thereto must be con-
str Led that he did actually take 1t INTO ms
custody and con.r0l2 Third, wne.her, ON the nypo-
tnesis tnat all the matters stated are true t.ie
judgment and proceedings In the court below
would estop the paintin TO MAINTAIN an acon
against lne maker VI Lne note 2 Tue plaintiff nam
lains that the act lnder VIII ch tne piOceedinss IN
conlscaLon were insltuted contclnplates the actual
SEIZURE anu prouuctlon IN court Of Tue 'properLy
Anu CrCQlC' prOCScueu ax1luSL Anu tllaL Wneu "a
court has Jurisdiction TO proceed ta rem, AM does
30 proceed, It's Judgments are conclusive against
aud Dlndlnv upOu tne whole word, consequently
the Judgment below Will est0p the palDVin " niaIn-
Latn au acClOn upon Tie note Against tne maker.
had the piaiuLin sued the maker, 1t Is sublnitted
tie record VI the proceed .ngs would have been sui
ucient Oar. anu would nave Deen pleaded AS such.
The deienuanls Contend that tile deDL owing Henry
Pelham BY Louis fenaul, and not tne eviuence Of
the hldeDLeuneSs, was tile property and Cred.p'
meant, ano tnat the particular menCon OF the Dote
III tne Noel and SUBSEQUENT proceedings was unly
descriptive oil the credit. Inc defendants Say tnAG
III lneir view the credit anu not no,e was
the property involved. Ihey presume pr cecl-
ings IN the District Court wou,d estop the pant Il
note.
Cause submitted on the printed points, but they
forDear to d,scuss the question,
J0ha Coburn for piantin J. y. Niles for de
fendaDts.
samuel Miler er rel. N. N. Page us. The Uaited
SGIes.-E,1Or to TIE CIRCUIT court JOr e District ~
Mtchtgdfa-lhis IL an0tlcr OF the cOnnscatOn
under the act oil Juy, 1907, ana prescnIs lne
Question vi constitutional law raised III %, " anu
l7s recently stated. AIcr discussing the technical
quesliOns VI Regularity &C., III Cne Courc below, the
laintln suDmits taL the ACT OF COnges IN question
WIS moOtcu III the exercise OF the sovereignty OF
government over me wuole peopie Or tue United
StateS and not In the exercise OF Its rights as y
beillgerent under the law 0t nations. Hence 1t II
not vaid uness IN conformity VITA the constLutiol
and IL Is said that II ID vOlAIlvc artlcle three
second section, third CAUSE and VI the 1In
amendments. Inc government c0ntendB that Tile
piaint.H LII error mas no standing In court, tne
statue for the seAure Of property III prosecution Vi
the war was not against the property VI amy par.
ucuiar rebel, bat against the properly OI any anu vi
enen,es. The property seized was the properly Oi
pubic enemy and ine staJed IL Miner; hut tue
Information would nave Oeen equally good naa lhs
name been OniLrou. IL was NOT nlaterlni wnic1
enemy owned II, bur only tnat al eneui. did. The
SAT- Was against the properly anu noL against the
owner. IN aiI respects TINS was Degerent seizu q
Jure belli and nc.Sler the provSOns VI the cOu5ti
tusIoa nor tile rules regulating municipal seizures
nave any intrinsic Application 70 II. Miler Was 4
pubic enemy III law and IN Iact Residing ltnin the
uominiOn - the nostile parry ana III u ie3al sense
engaKeo eVylng war against tue Uni,ed States
McGres " Mills Douglass Tor Lne plalntin; George
i. EdmunLs lOr the Uniteu states.