Averill v. Smith
84 U.S. 82 (1872)

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U.S. Supreme Court

Averill v. Smith, 84 U.S. 17 Wall. 82 82 (1872)

Averill v. Smith

84 U.S. (17 Wall.) 82

Syllabus

Trespass will not lie against a collector of internal revenue for improperly seizing and carrying away goods as forfeited where, on information afterwards filed, the marshal has returned that he has seized and attached them, and where after a trial absolving them, a certificate of probable cause has been granted under the eighty-ninth section of the Act of February 24, 1807, and where the owner of the goods has never made any claim of the collector for them except by bringing the action of trespass. The claimant of the goods after a trial where probable cause has been certified ought to move the court for the necessary orders to cause the property to be returned to the rightful owners if the court have itself omitted to make such an order. It is not the duty of either the marshal or collector to do so.

An Act of Congress of February 24, 1807, [Footnote 1] enacts:

"That when any prosecution shall be commenced on account of the seizure of any ship or vessel, goods, wares, or merchandise, made by any collector or other officer under any act of Congress authorizing such seizure and judgment shall be given for the claimant or claimants, if it shall appear to the court before whom such prosecution shall be tried that there was a reasonable cause of seizure, the said court shall cause a proper certificate or entry to be made thereof; and in such case the claimant or claimants shall not be entitled to costs, nor shall the person who made the seizure, or the prosecutor, be liable to action, suit, or judgment on account of such seizure and prosecution, provided that the ship or vessel, goods, wares, or merchandise be, after judgment, forthwith returned to such claimant or claimants, his, her, or their agent or agents."

The 89th section of the Customs Act of March, 1799, [Footnote 2] contains a provision substantially the same.

These statutory provisions being in force, one Smith brought trespass against Averill, a collector of internal revenue, for taking and carrying away certain barrels of whisky.

The defendant pleaded not guilty and gave notice, under the practice of the second circuit, of his defenses.

Page 84 U. S. 83

The case was tried, and a special verdict found as follows:

"That the defendant, being a collector of internal revenue, on the 4th of February, 1868, seized as forfeited to the United States and carried away and deposited in a storehouse at Corning the whisky mentioned, the same then being in the possession of and owned by the plaintiff; that an information was filed against the same in the district court of the United States for the said district; that on the 15th of May, 1868, a deputy of the marshal of the district presented to the defendant a process of the said district court, commanding him, the said marshal, to seize the said property; that the marshal made return that on the 4th of May, 1868, he did seize and attach the said property, and had duly cited all persons to appear and assert their claims thereto; that he did not at any time notify to the person having possession of, and in whose warehouse the said whisky was stored by the said defendant, that he, the said marshal, had taken possession thereof; that a claim and answer to the said property was put in by Smith, the plaintiff, as owner thereof; that a trial was had and a judgment entered that the property did not become forfeited, but that the same belonged to said Smith, the plaintiff; that afterwards, the said court adjudged and certified that there was probable cause for the said seizure; that the plaintiff had never made claim of the defendant for the said property except by bringing the said action; neither had said property, or any part thereof ever been returned to the plaintiff, nor had any offer been made to return the same, but that the same still remained in such storehouse at Corning aforesaid."

On this verdict judgment was entered for the plaintiff, and to review that judgment the defendant prosecuted this writ of error.

Page 84 U. S. 88

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