HOIT vs. HOOK

By U. S. Stat. 12 Cong. c. 129, § 2, the attempt to transport any articles of provision from any part of the United States to any place in Upper or Lower Canada, Nova Scotia, or New Brunswick, is prohibited, and such are declared forfeited, &c. And by 3, $3, collectors of the several ports are authorized to seize such articles so attempted to be transported, &c.

By U. S. Stat. 5 Cong. c. 128, § 89, when, in cases of seizure, judgment shall be given for the claimant, if it shall appear to the court, before whom the trial shall be, that there was a reasonable cause of seizure, the person who made the seizure shall not be liable to any action, suit, or judgment, on account of such seizure; provided the goods be forthwith returned to the claimant. The same provision is reenacted by U. S. Stat. 13 Cong. c. 93, 7.

In this case, the District Court having directed the cattle to be sold, it was impossible for the collector to return them. He did what was equivalent; he forthwith paid over the proceeds to the claimant, deducting only the costs of keeping them, as allowed by the court. Had they not been sold, the expense of keeping them would have exceeded their value, and there must have been a total loss of the property.

But the plaintiff has misconceived his remedy in bringing his action in this Court. The defendant did his duty in instituting the process. After it was commenced, it was out of his control, and he is not answerable in any other forum. If the plaintiff was dissatisfied with the issue of his claim in the District Court, he should have sought his remedy in the courts of the United States having appellate jurisdiction. It is humbly insisted that the decision of the District Court, upon a matter confessedly within its juris[* 213] diction, and not appealed from, * cannot be animadverted upon or called in question in this Court.

Mellen, for the plaintiff, admitted that there had been an order of the District Court for the sale of the cattle; but as they were not perishable articles, there was no authority vested by law in the Court to make such an order. The cattle having been decreed not liable to forfeiture, the claimant had a right to the possession of them in kind. It is no excuse or defence against this right, that the support of them would have exceeded their value. That was no concern of the claimant. The provisions of the statute of the United States, protecting their officers in cases of this kind, are expressly on the condition that the articles seized are forthwith restored. The certificate of the judge, as to a reasonable cause of seizure, is of no avail; is entirely without effect, unless this condition be absolutely complied with. That certificate makes no part of the judge's decree; it is, then, difficult to conceive what remedy the claimant

HOIT vs. Hook.

could have had by applying to a court of appellate jurisdiction, for a further remedy on that process. When the jury, by their verdict, had supported the claim, the District Court had nothing further to do in the cause but to award a restoration of the cattle. In taxing the costs of keeping, and deducting them from the proceeds of the cattle, it acted wholly without its jurisdiction.

Per Curiam. The decree of the judge, founded on the verdict of the jury, having liberated the proporty seized, it ought to have been restored to the claimant. The certificate of the judge, of reasonable cause, can operate to bar an action only when the property is restored, according to the proviso in the statutes. The deduction of the expenses does not appear to be justified by any law; and the sale of the property, under an order of the judge, which appears to have no legal authority, cannot affect the plaintiff's right to recover the full value of the chattels of which he has been deprived.

Judgment on the verdict.

[ * 214 ]

*

GEORGE HALIBURTON versus THE INHABITANTS OF

FRANKFORT.

A citizen, who furnished cattle to a public enemy, at the request of the selectmen and other citizens of a town, in compliance with the exactions of such enemy upon the town, and to prevent the execution of his threats of violence, acquired thereby no right of action against the town for his indemnity.

THIS was an action of assumpsit for a yoke of oxen, sold and delivered by the plaintiff to the defendants.

The cause was tried on the general issue before Thatcher, J., at the sittings here after June term, 1815.

The evidence at the trial was, in substance, as follows: In the early part of September, 1814, there being then an open war between the United States of America and Great Britain, a detach ment of the British army and navy took possession of the town of Castine, lying at the entrance of Penobscot River; and having the command of the river, they exacted certain contributions of cattle and vegetables for their support, from the town of Frankfort with other towns adjoining the river, threatening violent treatment if their demands were not complied with. At the request of the selectmen of the town, and some others who had been appointed, by a voluntary meeting of a number of the inhabitants, a committee 16* 185

HALIBURTON CS. THE INHABITANTS OF FRANKFORT.

to treat with the British forces, the plaintiff furnished the yoke of oxen, for which he demands payment in this action, as part of the said contributions; and the same were delivered, with others, in compliance with the said exactions. There was no act of the town, in its corporate capacity, authorizing the said contributions, requesting individuals to furnish them, or recognizing the act of furnishing them, as done in behalf of the corporation.

A verdict was taken for the plaintiff, subject to the opinion of the Court upon the evidence reported by the judge; and if, in the opinion of the Court, the plaintiff had maintained his action, judgment was to be entered on the verdict; otherwise the plaintiff was to become nonsuit.

*

Wilson, for the plaintiff, argued that, as the demand made by the enemy was on the town in its corporate or municipal [215] character, and as the plaintiff's property was appropriated to the satisfaction of that demand, it was reasonable and just that the town should reimburse him for what he had thus advanced for their benefit, and had applied to their use. In the confusion and hurry of such a scene, it was impossible to obtain a legal vote of the town; but in this case every thing was done, which the circumstances admitted, to pledge the faith of the town. There was a request of the selectmen, with the addition of a committee of the principal citizens.

M'Gaw, for the defendants, insisted that they were under no legal obligation, in their corporate character, to indemnify the plaintiff. The mischief threatened, in case of non-compliance with exactions of the British forces, must have fallen on individuals, not on the corporation. At any rate, here was no previous request, nor after recognition, of the plaintiff's act; and nothing can be clearer than that, if one advances his money to save the property of another, without the request of that other, he submits himself, in respect to the money so advanced, wholly to the courtesy and liberality of him for whose benefit he made the advance.

PARKER, C. J., delivered the opinion of the Court. However meritorious the plaintiff's claim may be, and whatever obligations may rest upon the inhabitants, in honor and equity, to pay him for property advanced to purchase the safety of the whole, we are not able to perceive any legal principle upon which his action can be maintained. There was no contract by the inhabitants, nor by any person authorized to make one for them. The selectmen acted in their individual capacity; the transaction being wholly out of the sphere of their official duty.

It may be doubted whether, if a vote had been passed in a regular town meeting. to pay for the property thus sacrificed, a tax

HALIBURTON vs. THE INHABITANTS OF FRANKFORT.

founded on such vote would be legal; for the demand was not of a nature to affect the inhabitants in their corporate, but only in their individual, capacity. The danger threatened was to the prop erty, not of the town, but of individuals. A voluntary

agreement amongst the inhabitants would have been [*216] binding, because founded on a meritorious consideration; but a corporate vote might be questioned upon such a subject. The verdict must be set aside, and the plaintiff be called.

Plaintiff nonsuit.

THE INHABITANTS OF BREWER versus THE INHABITANTS OF NEW GLOUCESTER.

If an original writ against the inhabitants of a town, of which a deputy sheriff is one, be served by the sheriff, it is a good cause of abatement.

ASSUMPSIT for the support of a pauper. The defendants pleaded, in abatement, that Robert Nevers, one of the inhabitants of New Gloucester, was, at the time of the service of the original writ in this case, a deputy sheriff, under Richard Hunnewell, Esq., the sheriff of the county of Cumberland, and that the said Hunnewell served the said writ on the said inhabitants.

The plaintiffs demurred generally to this plea; and the defendants joined in demurrer.

Perham for the plaintiffs.

M'Gaw for the defendants.

Per Curiam. The statute, describing the duty and power of coroners, (1) directs that all writs and precepts, when the sheriff or either of his deputies shall be a party to the same, shall be served by the coroner. As the law provides that, when judgment is recovered against the inhabitants of a town, execution may be levied upon the property of any inhabitant, each inhabitant must be considered as a party, within the meaning of the statute referred to, when the suit is by or against the town in its corporate capacity. (a) Writ abated.

(1) Stat. 1783, c. 43, § 1.

(a) [Sutton vs. Cole, 8 Mass. Rep. 96. - Odiorne vs. Wade, 8 Mass. Rep. 115. — Luf. kin vs. Haskell, 3 Pick. 356. — Bank vs. Cook, 4 Pick. 405. — ED.]

187

CASES

ARGUED AND DETERMINED

IN THE

SUPREME JUDICIAL COURT,

FOR THE

COUNTIES OF PLYMOUTH AND BRISTOL, JULY TERM, 1817, AT PLYMOUTH

PRESENT:

HON. ISAAC PARKER, CHIEF JUSTICE.

HON. SAMUEL PUTNAM,

JUSTICES.

COMMONWEALTH versus ISRAEL MORSE.

The bailee of a sheriff, who has received of him personal chattels attached, and given an accountable receipt for the same, with a promise to redeliver them to the sheriff on demand, has no such property in such chattels as will support an indictment for the stealing thereof from such bailee, as his chattels.

THE defendant was indicted for stealing an ox, the property of which was alleged in the indictment to have been in one Cromwell Leonard.

At the trial, which was had before Wilde, J., at the last October term in the county of Bristol, it was in evidence that the general property in the ox was in one Olive Morse; that, the day before it was taken away by the defendant, it was attached by one of the deputy sheriffs of the county of Bristol as the property of the said Olive Morse, at the suit of the said Cromwell Leonard, and delivered by the deputy sheriff to the said Leonard, who gave to the deputy