Burke v. Trevitt

| U.S. Circuit Court for the District of Massachusetts | Oct 15, 1816

STORY, Circuit Justice.

A doubt was thrown out at the argument, whether cases of this description were within the jurisdiction of the district court. The proceeding is, to be sure, of rare occurrence, because there has seldom been an occasion requiring its exercise; but it is difficult to conceive the ground of the doubt suggested at the bar. The district court as a court of admiralty and maritime jurisdiction, may entertain suits for all torts, damages, and unlawful seizures, committed upon the high seas, and other navigable waters, where the tide ebbs and flows. As a court of revenue, it has exclusive jurisdiction of all seizures made under laws of impost, navigation or trade of the United States, and may entertain suits for the condemnation or acquittal of the property so seized; and, as an inci■dent to such jurisdiction, may compel a redelivery of the property, or its value, into the possession of those, who may be ultimately entitled to it.² And it is quite immaterial, whether such a proceeding be enforced by way of original suit, or by a summary decretal order, in a cause already before the court Cases are familiar, where the court proceeds by way of monition, to •compel captors to proceed to adjudication of their prizes, and, on their refusal, enforces the rights of the claimant by a summary, or plenary proceeding, as the circumstances of the case may require. If the same process to compel a seizor to proceed to adjudication of property, seized for breaches of the municipal laws, is less familiar, it is not, that the court has entertained doubts of its authority; but that its interposition has not been sought. When property is seized, as forfeited under the revenue laws, it is the duty of the seizing officers immediately to institute the proper process to ascertain the forfeiture; and this duty is enforced by the eighty-ninth section of .the collection act. Act 2d March, 1799, c. 128 [1 Stat. 695]. As soon as the process is commenced, the property is in the custody of the law; for it is a general rule in all proceedings in rem, that the custody of the thing in controversy belongs to the court, in which the suit is pending. Jennings v. Carson [Case No. 7,281]; Home v. Camden, 2 H. Bl. 533; The Maria and Vrow Johanna, 4 C. Rob. Adm. 348; Sir W. Scott’s argument in Smart v. Wolff, 3 Term R. 329; The Rendsberg, 6 C. Rob. Adm. 142. The act of the 8th of May, 1792 [1 Stat. 275] c. 36, § 4, directed, that the marshal should have the custody of all vessels and goods seized by the revenue officers; but this provision was altered, as to goods, by the collection act of March 2d, 1799 [1 Stat. 678] c. 128, § 69, which declared, that all goods •seized under that act, should be put into and remain in the custody of the collector or his agent. This act, however, does not change the legal custody, after process is served upon the property. It is still, in contemplation of law, in the custody of the court; and the collector remains as much responsible to the court for the property, and as much bound to obey its decrees and orders, as the marshal is, as to property confided to his •care. The collector is in fact quoad hoc the mere official keeper for the court. See Smart v. Wolff, 3 Term R. 323. In respect to property in the custody of officers of the court, pending process, they are undoubtedly responsible for good faith and reasonable diligence. If the property be lost or injured by a negligent or dishonest execution of their trust, they are liable in damages; but they are not of course liable, because an embezzlement or theft is proved. They must be affected with culpable negligence, or fraud, and such is the confidence the court places in its officers, that perhaps the proof of such negligence, or fraud, ought to be thrown upon the other party. The Hoop, 4 C. Rob. Adm. 145; The Rendsberg, 6 C. Rob. Adm. 142, 157, 169.

What degree of diligence may be properly required in public trusts of this nature, whether that diligence, which a prudent and discreet man uses about his own affairs, and the omission of which is deemed ordinary negligence; or whether responsibility only attaches to fraud or gross negligence, the dolus et negligentia dolo próxima³ of the civil law, it is not necessary to determine; for it is perfectly clear from the whole evidence, that the marshal never claimed to have any custody of the goods in question. We may, therefore, dismiss all farther consideration of this case, so far as it respects the marshal.

As to seizures for breaches of municipal law, they are made by officers of the customs and others at their own peril. If made without probable cause, the seizor is responsible for all consequences; for the act is construed a tortious act; and his diligence in the preservation of the property is no protection against losses occasioned by superior force, or inevitable casualty. If made with probable cause, the seizor, at least by the laws of the United States (Act March 2, 1799 [1 Stat. 695] c. 128, § 89; Act February 24, 1807 [2 Stat. 422] c. 64), is entitled to the benefit of a bonae fidei possession, and is responsible only for ordinary diligence in the preservation of the property, and in bringing it in for adjudication.⁴ In these respects, he stands upon the same footing with captors exerting the rights of prize. The rule, as to captors, is laid down by Sir William Scott, with equal brevity and precision: —“Captors are generally bound for two things, for safe and fair custody, and, if the property is lost, or destroyed, for want of that safe and fair custody, they are responsible for the loss. For these two things every captor is answerable; but if an accident or mere casualty happens, against which no fair exertion of human diligence could protect, it must fall on the party, to whom the property is ultimately adjudged.” The Catherine and Anna, 4 C. Rob. Adm. 39. And, what that safe and fair custody is, the same eminent judge has stated to be, tnat the goods are to be kept with the same caution with which a prudent person would keep his own property. The Maria and Yrow Johanna, 4 C. Rob. Adm. 348; Jones, Bailm. 118.

If in the present case the loss had occurred by theft, while the property was in the possession of the seizing officer, a question of some nicety would have arisen. It is said, that by the general law of bailments, robbery by force is considered irresistible; but a loss by private stealth is presumptive evidence of ordinary neglect. Jones, Bailm. 44, note 18; Id. 76, 119. However this may be, it is certain that the presumption may be removed by proof of due diligence. Id. 66. And in the admiralty a captor is not held responsible for theft, unless there lies against him the imputation of personal negligence. The Maria and Yrow Johanna, 4 C. Rob. Adm. 348. And, at all events, the seizing officer is not responsible for a loss, happening to the goods, whilst they are under the custody of the law, and removed from his possession to that of the court. Id. 348. It is not necessary, however, to pursue these considerations farther; nor would they have been brought so far into discussion, if they had not affected the daily practice of the court. It is fit, that seizing officers, and the officers of the court, should constantly bear in mind the nature and extent of their duties, and the degree of responsibility and diligence, which the court requires at their hands. It is fit, also, that the public should know, that for every loss, occasioned by the misconduct or negligence of such officers, an adequate remedy will be administered by the court in the exercise of its ordinary jurisdiction.

Upon examining the particular circumstances of tiie present ease, there does not seem any proper ground laid for the interposition of the court. It is not clearly shown, that the property of the plaintiff was ever seized for a forfeiture, or removed from his personal custody by the officers of the cutter. On the contrary, it is in evidence that he was told, that he should have it, when he arrived in Boston; and there is not the slightest proof, that it was ever out of his personal possession, or any control exercised over it by the revenue officers. There is great reason to suppose it was stolen, but stolen after the revenue officers had left the vessel, and the marshal had taken possession of her under a warrant of the court, without, however, claiming any right to the goods. The plaintiff has, probably, acted under a mistake; but it is a mistake, which ought not to be pressed to the injury of those, who were not parties to it

The debree of the district court, dismissing the libel, must be affirmed; but, under the circumstances, without costs to either party.

2 The same point has been since recognised in Slocum v. Mayberry, 2 Wheat. [15 U. S.] 1. And see Gelston v. Hoyt, 3 Wheat. [16 U. S.] 302, etc.

3 See The Rendsberg, 6 C. Rob. Adm. 142, 157, 169; Domat, Civ. Law. bk. 1, tit. 7, “Observations Preliminaires;” Pothier, Traite du Contrat de Depot, c. 4, art. 1, note 85 et seq.; Id. art. 2, note 91 et seq.

4 Whether, independently of any statutable provision, an officer, seizing for a breach of municipal law, is, in case of an acquittal, protected from damages by probable cause, has not been settled in the courts of the United States. Is there any distinction, as to the eases of seizure on the high seas and on land? See. on this subject, Murray v. The Charming Betsy, 2 Cranch [6 U. S.] 64; Little v. Barreme, Id. 170; The Sally. 2 C. Rob. Adm. 224; Imlay v. Sands, 1 Cai. Cas., 566" court="N.Y. Sup. Ct." date_filed="1804-02-15" href="https://app.midpage.ai/document/imlay-v-sands-5463266?utm_source=webapp" opinion_id="5463266">1 Caines, 566; The Maria and Vrow Johanna, 4 C. Rob. Adm. 348; Maley v. Shattuck, 3 Cranch [7 U. S.] 458; and the very recent case of Gelston v. Hoyt, 3 Wheat. [16 U. S.] 301, etc. But see The Apollon, 9 Wheat. [22 U. S.] 362; The Marianna Flora. 11 Wheat. [24 U. S.] 1; The Palmyra, 12 Wheat. [25 U. S.] 17.