1. Where the marshal of the United States, to whom was directed
a warrant of provisional seizure sued out of the proper court
sitting in bankruptcy, levied it upon certain goods in the
possession of a third party claiming title to them, held
that this Court has jurisdiction to reexamine the judgment of a
state court whereby it was held in a suit against the marshal that,
by reason of such possession, he had no authority under the laws of
the United States to so levy the warrant.
2. The goods were subject to seizure under the warrant if they
were the property of the person against whom the proceeding in
bankruptcy was pending.
3. The marshal must in such a case act at his own risk in regard
to the ownership of them and their liability to seizure.
The case is stated in the opinion of the Court.
MR. JUSTICE MILLER delivered the opinion of the Court.
Alfred E. Lagrave and James D. Otis, partners in trade, were, on
a petition filed May 30, 1872, adjudicated bankrupts on the eighth
day of the following June. On the first day of the latter month, a
warrant was issued under the seal of the district court in which
the bankruptcy proceedings were pending directed to the marshal of
the district, which, after
Page 102 U. S. 687
reciting that a previous order had been obtained for the
possession of the bankrupts' goods, proceeded as follows:
"You are therefore required and authorized, immediately upon
receipt hereof, to take possession provisionally of all the
property and effects of said Alfred E. Lagrave and James D. Otis,
and safely keep the same until the further order of the court."
Under this warrant the plaintiff in error, who was the marshal
to whom the writ was directed, seized eight packages of goods. For
this act he was sued in the Superior Court of the City of New York
by the defendants in error, who recovered a judgment against him
for their value, which was finally affirmed by the Court of
The case was tried by a jury, the defendant's plea being that
the goods were the property of the bankrupts, and were lawfully
seized under the warrant for provisional possession.
While it is uncontradicted that the goods had been the property
of the bankrupts, evidence was given tending to show that, in fraud
of the bankrupt law, they had been purchased a few days before by
the plaintiffs in this action, and that, when seized by the
marshal, they were in the possession of the plaintiffs or of
someone for them. The court gave the jury the following
"As you know, the defendant is a United States marshal. He has
certain powers given to him by statute. Under a warrant of the kind
in evidence (the form of which it is unnecessary to read to you) he
has authority to take goods belonging to a bankrupt and which are
in his possession. He has no authority under such a warrant to take
goods from a third person, having possession for himself of the
goods and claiming as a matter of right to be entitled to their
possession. If that be the case here, the defendant had no right to
take these goods from Mr. Ketchum's warehouse. If Mr. Doyle was, as
a matter of fact, in possession of these goods, claiming them as
owner for himself, then the plaintiffs, Doyle and Adolphi, are
entitled to recover for the value of the goods what you shall find
it to be. Otherwise, the defendant is entitled to a verdict. It
will be unnecessary for you to inquire as to the reasons of
Page 102 U. S. 688
this, but I say to you briefly that such a rule of law as that
does not finally determine the rights of the parties, because the
defendant may only have limited rights to take possession under
certain circumstances, while the assignee in bankruptcy for the
creditors of Lagrave & Co. might try the question on different
principles of law. This defendant is an officer of the law, with
certain limited powers."
This charge, to which an exception was taken, was decisive of
the case, there being no doubt that persons other than the
bankrupts had, under claim of title, the possession of the goods at
the time they were seized under the warrant. The defendant asserted
a right to them under the laws of the United States on the ground
that the pretended purchase by the plaintiffs was a fraud upon the
bankrupt law, and passed no title, that the ownership was by virtue
of the bankruptcy proceedings in the assignee, and that the
plaintiffs were not entitled to recover. The right so claimed was
decided adversely to the defendant. The instruction was affirmed in
the court of last resort, and its soundness depends upon the
authority conferred on him by the writ. The case is therefore a
proper one for a writ of error from this Court.
The writ in the marshal's hand is identical in its mandatory
part with sec. 5024 of the Revised Statutes, and, if he did no more
than it commanded him, was a sufficient justification for his act
unless the statute is unconstitutional. This is not pretended
either here or in the state courts.
It is a little difficult to see upon what principle the
plaintiffs can maintain the suit if they were not the rightful
owners of the goods. It is true that in a case of naked trespass
without claim of right in the trespasser, the possessor of the
goods may recover without regard to the state of the title. But
such is not the case here. The defendant acted under a lawful writ
from a court having jurisdiction to issue it. By his plea, he took
upon himself the burden of proving that the goods were subject to
seizure under the writ, and in doing so he must, of course, prove
that the plaintiffs were not the lawful owners of them. In other
words, that the right of the assignee in bankruptcy, whose right he
represented in that suit, was superior to that of plaintiffs.
Page 102 U. S. 689
But the court said:
"You shall not be permitted to prove that. If plaintiffs show
that they were in possession, asserting ownership, you will not be
allowed to contradict that assertion."
Such a proposition is opposed to all the analogies of the
If a writ be sued out of a court of competent jurisdiction
directing an officer to seize specifically described property, as
in admiralty, replevin, or ejectment cases, it is a protection to
the officer when he is sued in trespass for executing it. If,
however, it in general terms directs or authorizes him to seize the
property of an individual without a special description of it, he
exercises the authority conferred at his own risk as regards the
ownership of the property, and its liability to seizure under that
process. Such is the rule applicable to an ordinary writ of
attachment, and to a fieri facias
at common law.
When, however, someone other than the defendant sues the officer
for a wrongful levy of the writ, it has never been doubted that the
title to the property and the rightfulness of the seizure under the
writ were open to inquiry, and that unless the plaintiff made out
his case before the jury, he must fail. This subject is fully
considered by the court in Buck v.
3 Wall. 334.
No just distinction can be seen between this latter class of
cases and the one now under consideration. The act of Congress was
designed to secure the possession of the property of the bankrupt,
so that it might be administered under the proceedings in
bankruptcy. Between the first steps initiating them and the
appointment of the assignee, a considerable time often elapses,
during which the effects of the bankrupt, especially in a case
commenced by creditors, may be surreptitiously conveyed beyond the
reach of the court or of the assignee, who, when appointed, is
entitled to the possession of them. If the bankrupt does not
voluntarily aid the court, or is inclined to defeat the
proceedings, he can, with the aid of friends or irresponsible
persons, sell his movable property and put the money in his pocket,
or secrete his goods or remove them beyond the reach of the
assignee or the process of the court, and thus defy the law. The
evidence in this case shows the manner in which this can be
Page 102 U. S. 690
It was the purpose of the act of Congress to remedy this evil.
It therefore provides that as soon as the petition in bankruptcy is
filed, the court may issue to the marshal a provisional warrant
directing him to take possession of all the property and effects of
the bankrupt, and hold them subject to the further order of the
court. To have limited this right or duty of seizure to such
property as he might find in the actual possession of the bankrupt
would have manifestly defeated in many instances the purpose of the
writ. There is therefore no such limitation expressed or implied.
As in the writ of attachment or the ordinary execution on a
judgment for the recovery of money, the officer is authorized to
seize the property of the defendant wherever found; so here it is
made his duty to take into his possession the bankrupt's property
wherever he may find it. It is made his duty to collect and hold
possession until the assignee is appointed or the property is
released by some order of court, and he would ill perform that duty
if he should accept the statement of every man in whose custody he
found property which he believed would belong to the assignee when
appointed as a sufficient reason for failing to take possession of
But he does this on his own responsibility for not only a
faithful, but a correct, judgment in deciding what property to
seize. He is liable to suit if by mistake he takes possession of
property not liable to seizure under his warrant.
Such a suit was brought in this case, and we can see no reason
why the issue made by the pleadings -- namely the true ownership of
the property -- should not have been fully submitted to the jury.
It was the shortest way to determine the rights of the parties. It
was the first time the issue was presented. It was before a court
of competent jurisdiction.
To hold that the plaintiffs, by reason of their bare assertion
of ownership connected with possession, must recover of the marshal
the value of the property, and that the assignee could then have
sued plaintiffs and recovered it from them, is a mode of doing
justice that does not commend itself to our judgment, even if the
assignee could be sure to find a responsible defendant when he came
We are of opinion that the Court of Appeals of New York
Page 102 U. S. 691
was in error in its construction of the bankrupt law and in
affirming the instruction of the inferior court.
Judgment reversed, and cause remanded for further
proceedings in conformity with this opinion.