Pelham v. Rose
76 U.S. 103 (1869)

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U.S. Supreme Court

Pelham v. Rose, 76 U.S. 9 Wall. 103 103 (1869)

Pelham v. Rose

76 U.S. (9 Wall.) 103

ON CERTIFICATE OF DIVISION OF OPINION BETWEEN THE

JUDGES OF THE CIRCUIT COURT FOR THE DISTRICT OF INDIANA

1. The seizure of the property of which a forfeiture is sought by proceedings had under the Act of Congress of July 17, 1862, "to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes" is the foundation of the subsequent proceedings. It is essential to give jurisdiction to the court to decree a forfeiture.

2. By the seizure of a thing is meant the taking of the thing into possession, the manner of which, and whether actual or constructive, depending upon the nature of the thing seized. As applied to subjects capable of manual delivery, the term means caption -- the physical taking into custody.

3. Where a writ of monition issued upon a libel of information, filed by the United States against a promissory note, commanded the marshal "to attach the note, and to detain the same in his custody until the further order of the court respecting the same," and the marshal returned the writ with his endorsement thereon that he had "arrested the property within mentioned," held, in an action against the marshal for a false return, 1st, that due and legal service of the writ required the marshal to take the note into his actual custody and control, and 2d that the return of the marshal signified that he had actually taken the note into his custody and under his control.

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