Smith v. Averill.

vided, 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." It was insisted, by the plaintiff's counsel, that, under this section and proviso, the certificate of reasonable cause is no defence, because the property was not returned; and he cited in support of his position, the case of Hoit v. Hook, (14 Mass., 210,) decided in the Supreme Judicial Court of Massachusetts, by Chief Justice Parker, and Justices Thatcher, Putnam, and Wilde, in 1817. The property in controversy in that case had been seized and libelled, and then sold, pendente lite, under the order of the District Court. After it had been sold the cause was tried, and Hoit, the plaintiff, as the then claimant, had a verdict. The District Judge thereupon decreed that the property was not liable to forfeiture; that there was reasonable cause for the seizure; that $384.43, for the expenses which had been incurred for the custody and sustenance of the cattle seized, should be deducted from the proceeds of sale; and that the residue, $151.57, should be paid to the claimant. A verdict having been taken for the plaintiff in the State Court, subject to the opinion of that Court upon the facts stated, the question whether the certificate and decree of the District Court were a defence was argued, and the Court decided, that the certificate of reasonable cause could operate as a bar to an action only when the property was restored, according to the proviso in the statutes above referred to, and ordered judgment for the plaintiff on the verdict. This case seems to be directly in point; and it was decided by judges of the highest character for learning and ability.

It was insisted, however, by the attorney for the United States, who appeared for the defendant, that he should not be held responsible, by reason of the non-return of the property seized, because, (1.) The plaintiff had never made a demand upon the collector for the return of the property; (2.) The collector did not have the possession of the property after the filing of the information, the marshal having taken possession of it under the process of the Court, and the collector having

Smith v. Averill.

no longer any control of the property, was not liable therefor. For this, he cited Burke v. Trevitt, (1 Mason, 96;) The Maria, (4 Ch. Rob., 348;) Shattuck v. Maley, (1 Wash. C. C. R., 245.) He also insisted that the plaintiff, failing to obtain possession of his property, should have applied to the District Court, which had power to compel a re-delivery of the property, or its value, into the possession of those who might be entitled to it. To maintain this position, he cited Slocum v. Mayberry, (2 Wheaton, 1;) Gelston v. Hoyt, (3 Wheaton, 246;) Burke v. Trevitt, (ubi supra.) The cases cited do not sustain these positions or weaken the authority of the case of Hoit v. Hook. In the case of Burke v. Trevitt there had been no information filed against the property in respect to which a recovery was claimed; and, of course, there was no certificate of probable cause. The owner of the property failed to recover because he failed to make out the trespass or taking alleged. The case of The Maria was a case of capture as an alleged prize, jure belli, and, as has been before stated, such cases have no application to the present question. In the cases of Shattuck v. Maley and Slocum v. Mayberry there had been no trial or certificate of reasonable cause; and in Gelston v. Hoyt there had been a trial, but a certificate of reasonable cause had been refused by the District Court. In short, these authorities are not applicable to the present

case.

It was insisted, however, that, the property having been arrested by the marshal, under the warrant of arrest, it was no longer in the custody of the defendant; that it was the duty of the marshal to return the property; that, if he failed to do so, the plaintiff should have applied to the District Court to compel the marshal to return the property; and that the defendant was not liable for the marshal's default.

It is quite certain that it was not the duty of the marshal to make return of the property to the claimant; and that the District Court could only require him to release the property from the arrest. But, if it were the duty of the marshal to make the return, and the Court had power to require him to VOL. VII.-3

In re François Farez.

perform such duty, it would, nevertheless, be very doubtful, to say the least, whether the marshal's neglect of duty would not prevent the statute from operating as a protection to the defendant. The return of the property forthwith after judgment, is a condition precedent to the exemption from liability declared by the statute; and it is clear that it was the intention of Congress that a failure to make such return should fix the liability of the seizing officer. If the marshal has neglected his duty, to the injury of the seizing officer, the latter must seek his remedy against the marshal; and, if any application to the District Court was necessary to secure such return, it was the defendant's duty, and not that of the plaintiff, to take care that such application was made, in order to secure the protection of the statute. But the marshal had no such duty imposed upon him in this case; and the defendant was liable to the warehouseman for storage, for which the latter could probably retain the possession of the property, at least as against the defendant, and, perhaps, as against the plaintiff, and against the marshal, after the order or judgment of the District Court that the property should be discharged, and that there was reasonable cause for the seizure.

The plaintiff must have judgment upon the verdict.

In re FRANCOIS FAREZ.

A warrant issued by a United States Commissioner, for the apprehension of a fugitive charged with crime, with a view to his being delivered up to a foreign government, under a treaty of extradition, is void, unless it shows, on its face, that the Commissioner issuing it is a Commissioner authorized by a Court of the United States to issue it.

Such warrant is void, also, unless it shows, on its face, that a requisition has been made, under the authority of the foreign government, on the Government of the United States, and the authority of the latter government obtained, to apprehend such fugitive.

A mandate for the apprehension of such fugitive, purporting to be issued by the Government of the United States, and issued under the hand of the Secretary of State and the seal of the Department of State, is a sufficient mandate.

In re François Farez.

Where a writ of habeas corpus is served on a marshal, commanding him to produce before this Court the body of a person in his custody, such person is in the custody of this Court, under such writ, from the time it is served on the marshal; and the marshal cannot lawfully arrest such person on a warrant, as a fugitive, in an extradition proceeding, until the proceedings on the writ of habeas corpus are terminated.

It is not enough, in a complaint praying for the issuing of a warrant in an extradition case, to charge a crime generally, but the substance of the offence charged should be clearly set forth, so that the Court can see that a crime for which an extradition can take place, has been committed.

In a case of forgery, it is not enough to charge, in the complaint, the crime of forgery generally, but time and place, and the nature of the forgery and of the forged instrument, must be sufficiently specified.

The complaint must be as specific as in the case of an offence committed in the United States.

(Before BLATCHFORD, J., Southern District of New York, November 17th, 1869.)

THIS was a writ of habeas corpus, in the case of a person who had been arrested for extradition, on the demand of the Swiss Confederation.

Francis R. Coudert, for the petitioner.

Henry D. Lapaugh, for the Swiss Confederation.

BLATCHFORD, J. On the 6th of November, 1869, a writ of habeas corpus was allowed by me, directed to the marshal of the United States for this District, and returnable before this Court on the 10th of November, 1869, at 11 o'clock A. M., commanding the marshal to produce the body of François Farez at that time before this Court, together with the time and cause of his imprisonment and detention. This writ was issued on a petition, signed and verified by Farez, which sets forth that he has been, since the 15th of October, 1869, detained, and imprisoned, and restrained of his liberty by the said marshal, on a warrant, a copy of which is annexed to the petition, issued by Charles W. Newton, Esq., described in said warrant as "a Commissioner appointed by the Circuit Court of the United States for the Southern District of New York, being a magistrate," under pretext of the provisions of the

In re François Farez.

General Convention of friendship, reciprocal establishments, commerce, and for the surrender of fugitive criminals, between the United States of America and the Swiss Confederation, concluded and signed at the city of Berne, on the 25th of November, 1850, against the petitioner, as a person charged with one or more of the offences named in the provisions of the said Convention, having fled from the jurisdiction of the Swiss Confederation. The petition alleges that the imprisonment is illegal, for want of jurisdiction in the said Commissioner over the person of the petitioner, or the subject-matter aforesaid.

The warrant referred to is dated on the 8th of October, 1869. It does not describe the official position of the Commissioner issuing it, except as before stated, nor does it contain any statement that any requisition has been made, under the authority of the Swiss Confederation, upon the government of the United States, for the apprehension and committal of Farez, or that any authority has been given by the Government of the United States for that purpose. The warrant recites that, in accordance with the said Convention, complaint has been made, under oath, by the Honorable Louis Philippe de Luze, Consul of the Swiss Confederation at New York, before the said Commissioner, and by him, the said Consul, presented to the said Commissioner, charging Farez with having, in the course of the year 1869, or heretofore, and after the date of the said Convention, committed, within the jurisdiction of the Swiss Confederation, the crimes of forgery, the emission of forged papers, and the utterance thereof; that said crimes, and each and every of them, are contrary to the laws of the said Swiss Confederation, and by such laws subject to infamous punishment, and to punishment by imprisonment in the State prison; that the said Farez has, since the commission of the said crimes, fled from the jurisdiction of the Swiss Confederation; that he is now within, and will be found within, the territories or limits of the United States of America; and that the said crimes, and each and every of them, are enumerated and provided for in the said Convention. The warrant is