The act of July 17th, 1862, contemplates the seizure of the property, the forfeiture of which is sought by the proceedings taken under its provisions. It says so in express terms. In one section it makes it the duty of the President 'to cause the seizure' of the estate and property, money, stocks, and credits of the persons designated therein. In another section it declares that the like property of persons engaged in armed rebellion against the United States, or in aiding or abetting the rebellion, 'shall be liable to seizure,' and imposes a similar duty upon the President to seize and use it. And in a third section it provides, that to secure the condemnation and sale of the property, 'after the same shall have been seized,' proceedings shall be instituted, in the name of the United States, in any District Court thereof, or in any Territorial court, or in the District Court for the District of Columbia, within which the property, or any part thereof, may be found, or, if movable, may first be brought; and that such proceedings shall conform, as nearly as possible, to proceedings in admiralty or revenue cases.
The seizure of the property, as thus seen, is made the foundation of the subsequent proceedings. It is essential to give jurisdiction to the court to decree a forfeiture. Now, by the seizure of a thing is meant the taking of a thing into possession, the manner of which, and whether actual or constructive, depending upon the nature of the thing seized. As applied to subjects capable of manual delivery, the term means caption; the physical taking into custody.
In the case at bar, a visible thing, capable of physical possession, is the subject of the libel. It is the promissory note of Pelham which constitutes the res, against which the proceeding is instituted, and not 'a credit,' or debt, which the note is supposed by the defendants' counsel to represent. Whether by any proceedings under the act of July, 1862, the indebtedness of a maker on a negotiable promissory note, before its maturity, could be reached without the possession of the note itself, is not a question presented for our consideration. It is sufficient that the object of the present libel is to reach the note itself. This appears at every stage of the proceedings; in the information; in the monition to the marshal; in his return; in the decree of the court; and in the sale made.
To effect its seizure, as required by the act, it was, therefore, necessary for the marshal to take the note into his actual custody and control. And such was the purport of the command of the writ of monition. The writ describes the note, and the command to the marshal is, 'to attach the note, and to detain the same in your custody until the further order of the court respecting the same,'-language which is inconsistent with any service other than that made by physically taking the note into his possession and control. This form of command is usually adopted in warrants to the marshal in cases of municipal seizure. 'On receiving it' (the warrant), says Conkling in his treatise, 'it is the duty of the marshal to arrest the property seized by taking it into his custody.' #fn-s-s [1] The term arrest is the technical term used in admiralty process to indicate an actual seizure of property. And the return of the marshal to the writ, that he has 'arrested the property within mentioned,' signifies in apt and technical language that he has actually taken the property into his custody and under his control.
The first and second questions certified to us must, therefore, be answered IN THE AFFIRMATIVE.
The third question rests upon an hypothesis, and we must DECLINE TO ANSWER it until it has lost its hypothetical character and become involved in actual controversy.
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