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December 1, 1870


ERROR to the Supreme Court of the District of Columbia.

This was an action of ejectment to recover certain real property in the city of Washington. The defendant pleaded title from a purchaser at a sale of the property under a judicial decree, made in proceedings instituted under the Confiscation Act of July 17th, 1862. It was conceded that the plaintiff had a good title to the premises, unless that title had been divested by the sale under that decree. The issue involved was, therefore, the validity of the decree.

The provisions of the confiscation act just referred to, along with some facts in connection with it, are set out fully in the report of Miller v. United States (the leading one of the confiscation cases), immediately preceding this one; and to the part of the report of that case beginning on page 269, with the words (prefixed by an*), 'The act of July 17th, 1862, contains fourteen sections,' to the words (prefixed by a) 'On the 24th November, 1863,' on page 274, the reader must now please to turn. He will find there what but to avoid mere repetition would be given here; and that which makes a necessary part of the statement of the present case. After reading it, he may resume his reading here.

The facts of the present case were found by special verdict. It appeared that in June, 1863, the marshal of the District of Columbia, in pursuance of an order addressed to him by the district attorney of the United States, stating that proceedings were to be instituted for the condemnation of the same to the use of the United States, seized the property in question. His return stated that he had made seizure of the property and given notice to the tenants in possession, as directed, and accompanied his return with a copy of the notice served on the tenants, which stated that the property seized was 'held subject to the order of the United States District Court, and the district attorney.'

Shortly after this return the district attorney filed a libel of information for the forfeiture of the property, alleging against Tyler that since the 17th of July, 1862, he had held and exercised an office and agency, of honor, trust, and profit, under the Confederate government, and that he had given aid and comfort to the rebellion, and to those engaged in it, by acting as a soldier and as a non-commissioned officer in the army and navy of the Confederate States, and by contributing money and property to aid and encourage those engaged in the rebellion.

Upon this libel being filed, an order was made, that process issue, and that notice by given to the owner or owners of the property, and to all persons interested or claiming interest therein, to appear and answer the information on the first Monday of August then next (1863), and show cause, if any they had, why the property should not be condemned and sold; and that notice be given by posting a copy of the order upon the door of the court-house, and by publication in the National Republican, a newspaper of the District.

A monition was accordingly issued, commanding the marshal to attach the property, and to detain the same in his custody until the further order of the court, and to give notice to all persons having or claiming any interest in the property to show cause as above stated. This process was never served by the marshal, and the only return which he made to it was a certificate that he had made the publication of notice in the designated paper.

On the 29th of July, 1863, and not on the first Monday of August, which latter day was specified as the day for the claimants and others to appear and show cause against the condemnation of the property, the court, without evidence being taken in the case, upon the papers and pleadings filed, entered a decree that the property be forfeited and condemned to the United States.

Upon this decree process issued to the marshal, to sell the property, and under the said process the property was sold, and purchased by a person through whom the defendant claimed.

Upon the facts found by the jury, the court ordered judgment in favor of the defendant. From this judgment, the case was brought to this court on writ of error.

Messrs. Brent and Merrick, for the plaintiff in error:

I. The title of the plaintiff was not divested by the mere act of seizure made by the marshal. The act of Congress contemplates and directs the institution of judicial proceedings to accomplish a divestiture. The proceedings are indeed assimilated to proceedings in admiralty; but judicial proceedings of some kind are absolutely necessary in order to divest the title of the owner. Now, therefore, assuming that judicial proceedings were essentially necessary, the regularity of the proceedings in each particular instance becomes legitimate matter of inquiry, though in a collateral issue, like the present, we are restricted to the question of jurisdiction.

The act requires that 'the proceedings should conform as nearly as possible to proceedings in admiralty and revenue cases.'

The general jurisdiction in admiralty and revenue cases is regulated by the Judiciary Act of September 24th, 1789. Various decisions, in which this act has received a judicial construction, show that the seizure ascertains and determines the forum wherein judicial proceedings were to be instituted, but does not of itself subject the property to the judgment of the court.*fn1

After the forum is ascertained, what is to be done? The act of Congress of March 2d, 1799,*fn2 provides that 'all goods, &c., &c., seized by virtue of this act, shall be put into and remain in the custody of the collector, or such other person as he shall appoint for that purpose, until such proceedings shall be had as by this act are required to ascertain whether the same have been forfeited or not.' And the same act*fn3 goes on to provide that 'the collector within whose district the seizure shall be made, or the forfeiture incurred, is hereby enjoined to cause suits for the same to be commenced without delay, and prosecuted to effect, &c., &c., &c.'

These sections contemplate a second seizure of the property by the marshal as an officer of the court. The act provides that the collector shall retain it only until the institution of proceedings in court. As soon as these proceedings are instituted, the marshal, in virtue of the process and monition of the court, must take it out of the hands of the collector and into his own custody. For 'as soon as the marshal seizes the same goods under the proper process of the court, the marshal is entitled to the sole and exclusive custody thereof, subject to the future orders of the court.'*fn4

The admiralty rules have been framed under this view of the law. Rule twenty-two requires that 'all informations and libels of information, upon seizure, &c., shall conclude with a prayer of due process, &c.' And rule nine prescribes, that 'in all cases of seizure, and in other suits and proceedings in rem, the process, unless otherwise provided for by statute, shall be by a warrant of arrest of the ships, goods, or other things to be arrested; and the marshal thereupon shall arrest and take the ships, goods, or other things, into his possession, &c.'

What need of a warrant of arrest, if the property was already in the custody of the court and subject to its judgment? The office of the process was to bring it into the court. The duty of the marshal in executing the process 'is to arrest the property seized by taking it into his custody;' and his return is to be, that he has arrested the thing, and cited all persons interested, &c., & c., as he was by the warrant ordered to do. Then, and not till then, the jurisdiction of the court attaches.

A court acquires jurisdiction only by either one of two modes: 1. As against the person, by service of process. 2. In rem, by arresting the thing under the order or writ of the court.*fn5

In a proceeding either in personam or in rem, the process must be the process of the court. Now the seizure made here by the order of the district attorney was simply an executive act, not a judicial notice. The marshal, in making that seizure, acted as the agent of the district attorney, or of the executive branch of the government, not as the officer of the court. In a suit by the United States, could a court obtain jurisdiction in personam by an executive mandate, without any process from the court directing the defendant to appear?

Again, the object of process, either in personam or in rem, is to give notice of a pending case. Did this seizure, under the act of July 17th, 1862, give such notice? The President may seize for the purpose of using, and if he chooses he may take proceedings to condemn. Under the revenue acts, the person making the seizure is required to proceed at once. Under this act the President may never proceed.

The evidence of seizure is the marshal's return–a jurisdictional fact which must appear in the record. But conceding that the fact of seizure by the officer of the court might be proved, in the absence of a return, from other sources, there is no proof of such seizure here. And what appears in this record?

1. A writ, and no return upon it.

2. No finding by the jury of the fact of seizure.

There is nothing to show that the marshal, as an officer of the court, ever had this property in his custody, nothing, that that was done which could give the court jurisdiction.

That the person who at one time seized this property was the same person who was marshal of the court when the monition issued, can make no difference. There is nothing to prevent that person from acting in two or more different capacities, and he did not act as the officer of the court, or in obedience to any process issuing from it, when he made this seizure.

II. The decree of sale was passed 29th July, 1863, prior to the first Monday in August, on which last day the monition and attachment were returnable, so that the legal notice prescribed was disregarded and the decree rendered without either actual or constructive notice. Of course such a sale is not judicial, but void to all intents, and in whatever way it may be presented to a court as a muniment of title.

The libel does not on its face show that the plaintiff in error had not within sixty days after public warning and proclamation by the President ceased to aid, &c., in the rebellion, as required by the sixth section of the act of 17th July, 1862.*fn6

III. The decree of condemnation does not find the essential fact, that the property belonged to a person engaged in the rebellion. The seventh section*fn7 only authorizes the condemnation of the property seized 'if it shall be found to have belonged to a person engaged in rebellion, or who has given aid and comfort thereto.' The libel alleges that the 'said accused is and was on the 17th day of July, and previously thereto had been the owner' of the property seized in this case, and that the ...

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