WRIT of error the supreme judicial court of Massachusetts, for the counties of Suffolk and Nantucket.
In the court of common pleas of the county of Suffolk, Massachusetts, James Dennie, the defendant in error, a deputy sheriff of that county, under a precept issued by the authority of the state, attached twenty-three cases of silks imported in the brig Rob Roy, from Canton, for a debt due by the importers and owners of the goods, George D'Wolf and James Smith. Soon after the arrival of the vessel, the collector of the port caused an inspector of the customs to be placed on board. The attachment was made before the entry of the merchandize, and payment made or security given for the payment of the duties thereon, and before an inspector was put on board the vessel. At the time of the attachment, the plaintiff offered to give the collector security for the payment of the duties to the United States, which he declined to accept. About seventeen days after the attachment, the merchandize being in the custom house stores, under the following agreement, to wit, 'District of Boston and Charleston, port of Boston, August 29th 1826. I certify that there has been received into store, from on board the brig Rob Roy, whereof _____ is master, from Canton, the following merchandize, to wit, twenty three cases silks, A. O. 1 to 23, lodged by D. Rhodes, Jun. inspector, under whose care the vessel was unladen. B. H. Scott, public store-keeper. I hold the above described twenty-three cases silks subject to the order of James Dennie, Seq. deputy sheriff. B. H. Scott;' the defendant, being the marshal of the United States for the district of Massachusetts, attached and took the same merchandize, by virtue of several writs in favour of the United States against D'Wolf, duly issued from the district court of the United States. These writs were founded upon bonds for duties given by D'Wolf and Smith, amounting to a sum much larger than the value of the merchandize, which duties were due and unpaid when the merchandize arrived.
The deputy sheriff, James Dennie, brought an action of trover against the marshal for the goods; and the judgment of the supreme judicial court of the state, to which the case was removed by writ of error from the inferior court, was in favour of the original plaintiff; and the defendant prosecuted this writ of error.
The following errors were assigned in the supreme judicial court of Massachusetts: that, according to the true construction of the several acts of the congress of the United States, imposing duties on certain goods, wares and merchandize imported into the United States from foreign ports, and also of the act of said congress made and passed on the 2d day of March 1799, entitled 'an act to regulate the collection of duties on imposts and tonnage:' it is contended,
1. That upon the arrival of the said merchandize in question at the port of Boston and Charleston, and prior to the supposed attachment thereof by the said Dennie, a debt immediately accrued to the United States for the amount of the duties thereon; and the collector for said port had therefore a legal lien on the said merchandize for the debt aforesaid; and consequently they were not then subject to the said Dennie's attachment aforesaid.
2. That the offer of the said Dennie, at the time of making his said attachment, to give to the said collector security for the payment of the duties on said merchandize, did not in point of law give validity to the said attachment; inasmuch as the said collector was not at that time, it being prior to any entry of the merchandize at the custom house, authorised by law to receive security from the said Dennie, or any other person or persons whomsoever, for payment of the duties aforesaid.
3. That after the said merchandize was placed in the custom house store, as is found by the special verdict, and from that period to the time when they are stated to have been attached in behalf of the United States by the said Harris, as marshal of said district, the legal lien of the United States constantly remained with them; and that the certificate of B. H. Scott, the store-keeper, which appears in the said verdict, can have had no effect to discharge or in any degree to impair the force of the said lien.
4. That by the provisions contained in the sixty-second section of the aforesaid act of March 2, 1799, the goods in question, the same having been imported by and consigned to George D'Wolf and John Smith, as by said verdict is found, are in point of law to be considered as their property, so far as to be holden liable for the payment of all the debts then due from them to the United States for duties on merchandize heretofore imported by them into the said port of Boston and Charleston.
It was also in this court contended, that the defendant in error had no property, either absolute or special, nor possession, nor the right of possession in the goods, which were the object of the supposed trover and conversion in the declaration mentioned.
The case was argued by Mr Berrien, attorney general, and Mr Dunlap, district attorney of the United States for the district of Massachusetts, for the plaintiff in error; and by Mr Webster, for the defendant.
For the plaintiff in error, Mr Dunlap stated, that the position contended for in the state court was, that under the revenue law the government of the United States has a lien on goods imported, nor only for the duties accruing on that importation, but also for the payment of all debts due from the consignees arising from antecedent importations. This question, he admitted, had since been disposed of against the United States. Conrad vs. The Atlantic Ins. Com. 1 Peters, 386. It is supposed that the great question in the cause now before the court is, whether goods imported can, before entry at the custom house, and while under the lien of the government, in possession of the custom house officers, be legally attached by virtue of process from a state court. Such an attachment, it is claimed, is not only void by the laws of the United States, but also by the laws of the state of Massachusetts; and therefore the defendant in error did not by the process obtain any property or right of possession in the goods, which could enable him to maintain an action of trover.
The laws of the United States provide, that goods imported shall, until entered at the custom house, be taken into the possession of the officers of the government, and after a certain time be deposited in the custom house stores; and afterwards, a further time having expired, if they have not been entered by or for the importer, they are to be sold according to the thirty-sixth and fifty-sixth sections of the act of March 3, 1799.
An attachment, at the suit of any creditor of the importer, upon goods thus situated, would interfere with and destroy the possession and lien of the government, thus secured by law. Such an attachment, thus interfering with rights thus given, is the exercise of 'an authority under a state,' which 'is repugnant to the laws of the United States.' The exercise of such an authority is in opposition to the exemption claimed to exist in favour of those goods from such process, and is a defence for the marshal of the United States to this action of trover by the deputy sheriff. This case is therefore one properly within the action of the ninety-fifth section of the judiciary law; and is well brought before this court to reverse the judgment of the supreme judicial court of Massachusetts.
The attachment from the state court is void, as well by the laws and adjudged cases of Massachusetts, as by the laws of the United States. A statute of the state, if it interfered with a law of the general government in reference to subjects within its legitimate operation, would be void; but no such law, in reference to the proceedings and claims of the defendant in error, is to be found. To constitute a legal attachment of goods, they must be taken within the actual or constructive possession of the officer; and when this cannot be done, on account of the existence of prior liens, or from any other cause, no attachment can be valid. The decisions in the state of Massachusetts fully sustain this position. Phillips vs. Badger, 11 Mass. 247. Bedlam vs. Tucker et al. 1 Pick. 389. Watson vs. Todd et al. 5 Mass. Rep. 271.
In Pierce vs. Jackson, 6 Mass. Rep. 242, the court say that when goods are attached, they must be seized under execution within thirty days, or the lien of the judgment is gone. The goods in the custom house stores could not have been sold under any process. Cited, Vinton vs. Bradford, 15 Mass. 114. Lane vs. Jackson, 5 Mass. 157, decides that the officer must have the actual possession and custody of the goods. Cited also, Odiorne vs. Polley, 2 New Hamp. Rep. 66. Also, 2 New Hamp. Rep. 317. Holbrook vs. Blake, 5 Greenleaf's Rep. 371. 6 Conn. Rep. 356. 1 Shower, 169. Vin. Ab. Distress, E. 2. H. 42. H. 52.
The effect of the acknowledgement of the store keeper could not be to vest a property in the goods in the deputy sheriff. It was unauthorized; and the store keeper had nothing to dispose of. He was the agent of the United States, to protect and preserve the property while in the public stores; and he could not divest himself of these relations, and become the bailee of the sheriff.
If the sheriff had no right to make the attachment, he acquired by the either a general or a special property, which is necessary in order to maintain trover; and in fact he never had the actual possession of the goods. The only title he asserts is, as an officer by virtue of the attachment; and if that is adjudged illegal and void, the foundation of his action fails. 2 Saunders's Rep. 47. 7 T. R. 9.
Mr Webster for the defendant contended; that this court has no jurisdiction of the case, according to the provisions of the judiciary law.
It is not required that it should appear, in form, that an act of congress had been misconstrued; if it has been substantially the fact, it is sufficient to give the writ of error to the highest state tribunal. But it does not appear in any part of this record, that such was the proceeding in the supreme judicial court of Massachusetts.
The question originally raised in this case was, whether the United States had a general lien on goods imported for debts due to them by the importer; and that question has, since this action was brought, been decided in the negative in Conrad vs. the Atlantic Insurance Company. The only question remaining in this case was, whether the goods were liable to attachment, and this was a question properly for the decision of the state courts. The United States claimed to attach and hold the goods for the debts due to them by D'Wolf and Smith, and the other creditors of those persons denied this claim, and proceeded by an attachment. The United States stood in no other relations and with no other rights before the state court than the other creditors. In the state court, and upon the state decisions, the attachment for the creditors was considered valid. This is an answer to the argument, that such is not the law of Massachusetts. This decision does not therefore bring into question the construction of any act of congress.
Mr Berrien, attorney general, in reply, argued: that there was enough in the record to show that a question of the application of a statute of the United States was decided by the supreme judicial court of Massachusetts; and this would sustain the jurisdiction, although it may not have been the only question in the case. 2 Wheat. 363. 1 Wheat. 304.
This is an action of trover against an officer of the United States, the marshal, for taking goods out of the hands of an alleged bailee, for a debt due to the United States; and the question is, was there then an existing lien in favour of the United States under the sixty-second section of the duty act?
The construction of this statute was thus brought into question, by the inquiry whether there was a conversion by the marshal. He says, that his proceedings were under the authority of the law; and it was therefore essential that the state court should decide upon the law, and construe the law.
2. In an action of trover and conversion, the plaintiff must show property, and a right to retain it.
The goods were in the possession of the custom house, and subject to duties which were unpaid. It was necessary that the court should decide, that goods, before the payment of the duties, can be taken out of the possession of the custom house by the process of state courts. This question is to be decided by a reference to the laws of the United States.
Such an exercise of power would be inconsistent with the provisions of the laws of the United States.
The position which is asserted by the plaintiff in error, is that goods so situated are exempt from such process.
The plaintiff in the state court contended; that they could be taken under the authority of the state of Massachusetts; and this was the assertion of a claim of authority under a state, against the laws of the United States.
Upon these grounds it is manifest that the construction of the laws of the United States immediately entered into the question before the state court. It must appear to this court, 1. That the goods were liable to be attached. 2. That there is nothing in the laws of the United States which prevents this. 3. That the United States had no lien on the goods. All these points must be decided in favour of the plaintiff below, before it can be held that the marshal was guilty of a conversion.
Mr Justice STORY delivered the opinion of the court.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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