The New York herald., 1871-02-18
MARSHAL SEARPES DEADLOCK.
The Collector Of the Port and the Marshal Of
the District on Their Muscle.
Important Decision by Judge
BlatchfOrd.
THE COLLECTOR TRIUMPHANT.

THE COLLECTOR TRIUMPHANT.
We give below the decision OF Judge Blatchiord'
rendered yesterday in the United States DISTRICT
Court, on the question, recently argued, whether
the Collector OF the Port or the Marshal OF the Dis.
trict shall nave custody OF goods and property seized
under government process:-
THE COLLECTOR TRIUMPHANT.
The United States rS. one Case, containing SILKS
rendered his decision In the above The learned
Judge says:-The libel OF Information IN this case
oa waters ,e Se e p yess
Of ten more tons burden by the Collector OF Gus
toms or the Port and collection district OF the city OF
New York, as forfeited 10 the United States for vo
lations OF the oath and Gsh sections OF the net of
March 1893, in relation to duties on imports and
tonnage The prayer Of the information 49, that
due process issue in thar behalf as well OF attach
ment TO bring the said property wlthin the custody
oil the court, as OF monl,ion to all parties in lri-
terest to appear the return OF such process and
duly intervene herein, by claim and plea to the
premises. y and that the property be condemned by
On the fling OF the libel Oh Information writ was
Issued to the Marshal OF the Southern district OF
New York, commanding MIN TO attach the property
and to detain II in his custody until the further order
Of tue court respecting 1t, and to give due notice,
&c. The writ was returnable September u, 1870
The return to 1t made by the Marshal on that day
was as iollows:
THE MARsHsL's RETURN.
] certify that after due diligence / have been
unable 10 attach the property described i'll thu
within monton. ana to delain the same in my Gus.
t0dy. GEORGE IL. SHARPE
United States Marshal.
An anldavit is now presented TO the Court on the
part OF the United States made by deputy collector
Of customs at the port OF New FORK. IL sets ferth
that sucn deputy collector has, under the Collector
the and custody of all goods seized within this
district account of alleged violations or the
toms revenue laws and or the institutions or pro.
Ceedings for the recovery aud enforcement OF ues,
there has @ been eSer since '' April 1855 1862 . and
was for long time prior thereto, in
sne Custom House at the port Of New
OF seized goods; that there are employed In SAID
room storekeeper, an opener and packer and
laoorer. all under salary: that until recently, ever
Since April, 1882 and for long time prior thereto.
II was the custom, where goods had been seized
Rnd placed in the SEIZURE room and u suit had been
Instituted for their condemnation for The Marshal of
the district to call at the Custom House and make in
qury ii the goods were In the possession Of the COL
lect0r and thereuDon TO make return upon tho
monition OF the attachment OF the goods proceeded
against; that some few months since the Marshal
from the custody or the Collector goods against which
he held monition; that tnereupon such deputy
TO INvEsTIaAE THE LAW,
and to consult with the District Attorney OF the
United States: that such investigation and consulta-
ton resulted In the Collectors deciding to retain
possession OF the goods until final adjudication,
less otherwise ordered W the Court that after
time had elapsed, and after various attempts to
procure the submission of the question to the de.
ctson OF the Court Marshal. the presentation
Of o mOnitiOn, and in one or two instances or an
alias monition. demanded possession OF the goods
therein described; tnat tnereupon said deputy col
!ector gave to the Marshal certificate signed by
him LII substance as follows:-
C0LLECToR'S CERTIFICATE.
This may certify that the goods (givng marks, &c.)
described In the m0nitiOn now exhibited to me by
the United States Marshal. dated -, are In the
seizure room OF the custom House, and IN the Gus
accordance with 81 Of the act July 49, 1865
and acting under the advice or the United States
the same to the order Of the United States Marshal
put nods the same to abide adjudication, subject to
the order OF the Court; that certificate, the same
In substance as the foregoing, was gwen In the
present case to the Marshal or his deputy upon
his presenting the monitlon and demanding the
goods proceeded against; that like certificate has
been given in like circumstances in other cases
which have been instituted since this ques ion was
1rst rased that all the goods seized are kept in q
qreproof rOom without any charge for storage or
Insurance, the only expense being carriage TO the
It has been the practice Of such deputy collector to
require In all cases where goods for which suit
cause released direction FOR their release
from the Marshal; tnat such was the prac
tice in April, 1859; that tue deputy collector
has continued to require such direction as being evi-
dence OF the direction OF the Court In the premises
and also evidence that the Marshal has received all
fees and costs to which he is entitled aud that 1t
been the practice to deliver goods which have been
condemned to the Marshal or his order for sale. An
alias monltlon with directions like these in the
gnal motion as to the attachment and detention of
the property has been issued III the TO the Mar
saa on the records IN tne cause and the foregoing
on the part OF the United States for an order
that such alias moniton be SO modified, In respect
to the clause therein contained, commanding
the Marshal to attach the property and to detan it
in his custody until the further order OF the Court
respecting It, as TO CONFORM TO the provisions OF the
thirty section Of the act Of July 49, 1866 IA u s.
Stat at Large, 1S6 or that he make return thereto
stating the fact that such properly was found in the
custody OF the Collector and is left In his custody
nnder the provisions Of SAID act. Such motion is
made on notice to The Marshal, and Is opposed by
Judge Blatchford then enters upon q review Of the
course OF LEGISLATION and judicial decision on the
SupJcct involved. lie concludes at fellows:-
JUDICIAL REVIEW.
Nor is the question one which involves the juris-
dict10n or authority OF the Court the that is
prosecuted or its jurisdiction over the suit In rem.
The property having been seized as forfeited and
the seizure having been adopted by the. United
States by bringing the suit rem to enforce the
forfeiture, the Court has jurisdiction to decree such
forfeiture and jurisdiction and authority to order
the property, under the seth secton OF the act OF
1899, to be delivered to the claimant on appraise-
ment and bond and the payment of duties. and to
same act II not bonded to be, when condemned.
sold by the Marshal or other proper officer of the
& Cout. @ even n, though tho property remains in the
possession OF The Collector until adjudication,
:, Tue views OF Mr. Justice Story ana OF Chief Justice
fancy are sound IN reference to case where, IN
custody after process. The property 49, In contem-
pation OF law, afer process, in tile custody OF the
custody. provided 1t remains in custody under a
seizure for forfeiture, while the proceedings In court
against 1t are pending. The Collector Is
ITS OFFICIAL KEEPER
for the Court after process, and the Court has after
process as ul control over 1t in the hands of the
Collector and as full power to compel obedience by
the Collector 10 all orders OF the Court respecting it,
II 1t were In the hands OF the Marshal under pro-
cess Such appears to have been the view of Judge
Bets in respect to custody by the Collector after
process under the rules Of this Court in regard to the
summary proceedings In rem in behalf oil the
United States where the matter In demand did not
exceed fifty dollars: and 1t is necessary view in
respect to all property prosecuted for forfeiture,
where the custody after process Is given by statute
20 ihe Collector.
IL follows that not only is the provision OF the
fourth section OF the act OF 1892 abr0gated by the act
OF 1865 but the ninth rule IN admiralty, III view Of
the provision OF the Of 1866, does not apply To
cases like the present Such cases are, I'm the
language OF the rule, otherwise provided Tor by
statute.n
TIE MARSHAL's DUTY.
Such being the Interpretation Of the act OF 1865
what relief Is to be granted on the motion in this
case think the proper course ts to amend the
Alias m0nltl0n so that 1t shall command the Marshal
to attach the property by leaving with the Collector