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time jurisdiction," but also in" any other case of seiz- CHAP. 3. ure." It is believed therefore that it may safely be considered as pertaining alike to both descriptions of seizure, and it is apprehended that no distinction has hitherto been made between them by the courts, in this respect.

There is one description of property which is not, strictly speaking, perishable; but to which, nevertheless, the reason for directing the sale of perishable property is strongly applicable. I refer to domestic animals, which are frequently the subject of seizure on our inland frontier. It often happens, especially when the proceedings are protracted by the interposition of a claim, that the expense of keeping and feeding such animals until the final decision of the case, nearly equals, and it sometimes exceeds their full value.

Whether the power in question extends to this species of cases, is a question upon which I am not aware that any judicial decision has yet been made. But it would seem difficult to distinguish them in principle from those in which the power is indispu table.

By the act last above cited, the application for an order of sale may be made, as we have seen, as well to the judge in vacation, as to the court in session. It may be made, therefore, at any time after the service of the warrant of arrest. The petition setting forth the facts on which the application is founded, ought to be verified by oath, and a copy of it, with notice of the motion served on the opposite party, his proctor or attorney. See Appendix, Rule 87, D. C. N. D. N. Y.

Upon the entry of the order of sale, a writ is issued by the clerk to the marshal, commanding him to sell 'Ch. 66: 4 Stat. at Large, p. 503.

PART 3 the property, and pay the proceeds into court to abide the final decision of the cause. See Appendix, "Practical Forms."

A sale, pendente lite, being a proceeding adopted for the benefit of all parties, the costs of the proceeding, including the commissions of the marshal, ought, unless in very special cases, to be paid by the party to whom the property is ultimately awarded. In other words, they are to be paid out of the fund produced by the sale. The Sally, 1 Gallis., 401, 415.

Contrary to the doctrine laid down by the court in the early case of Jennings v. Carson (4 Cranch, 2), it is now well settled that, by an appeal from the sentence of a district court to the circuit court in a suit in rem, the property (or, if it has been sold, the proceeds of it), follows the cause into the circuit court. After appeal, therefore, the district court can no longer order a sale, but such order must emanate from the circuit court.

But if a further appeal be had to the supreme court, the property, or its proceeds will still continue in the circuit court, because the supreme court, in such cases, does not execute its own judgment, but sends a special mandate to the circuit court to award execution thereon. The Collector, 5 Wheat., 194; The Grotius, 1 Gallis., 503.

SECTION VII.

OF THE CLAIM AND DEFENSE, AND THE BOND FOR COSTS.

1. Of the Claim.

In proceeding to the consideration of the several matters falling under this head, it will be useful for the reader to keep steadily in view the nature and objects of the proceeding of which we are treating. It is strictly a prosecution against a thing, which has been seized as forfeited to the United States on

account of some imputed illegal act in regard to it. CHAP. 3. No inquiry is instituted on the part of the government concerning the ownership of the property, and no person is called upon coercively to answer for the supposed offense; and if no one chooses voluntarily to interpose, the judgment which follows acts directly on the thing only.

But in accordance with obvious principles of justice, the law, as we have seen, nevertheless requires that public notice should be given of the prosecution, to the end that the owner, whoever he is, may be apprised of the peril in which his property has been placed, and have an opportunity of contesting the truth of the charge against it.

It is obvious then that the claimant is an actor, and that he is entitled to come before the court in that character, only in virtue of his proprietary interest in the thing in controversy. He is therefore required to establish his right to that character, as a preliminary to his admission as a party, ad litem, capable of sustaining the litigation. The United States v. Four hundred and twenty-two Casks of Wine, 1 Peters, 547.

What interest in the res is sufficient.] It is not necessary that the title of the claimant should be absolute or exclusive. It is sufficient that he has some definite interest, known and recognized in law. Thus a pawnee or mortgagee of the property, or one having any specific lien upon it, would be entitled to appear as a claimant. The claim should, however, be co-extensive only with the interest of the claimant. It is irregular, therefore, for the owner or owners of a part of the property to interpose a general claim to the whole of it. Stratton v. Jarvis and Brown, 8 Peters, 4. The master of a vessel may appear as claimant in behalf of the owners of the

PART 3. vessel or cargo, at a place remote from that of their residence, but not in or near the place where they reside. Spear, claimant, &c., v. Place, 11 Howard, 522.

By whom the claim is to be made.] When the circumstances of the case admit of it, the claim should be preferred by the owner in person. The Adelaide, 9 Cranch, 214; The Sally, 1 Gallis., 401. When the principal is without the country, or resides at a great distance from the court, the claim may be made through the intervention of an agent. Id. Such are the rules laid down by the court in the cases here referred to, and there can be no doubt of the solidity of the grounds on which they rest. But in truth, in both of them as well as in other reported cases, a claim by an agent was received and treated as regular, although the claimant resided at no remote distance from the court. The master of a vessel, which, or the cargo of which has been seized, may claim in behalf of absent owners, though he has no personal interest in the property. And a consul, duly recognized as such by our government, has a right in virtue of his official character, to interpose a claim in behalf of the absent citizens or subjects of the country whose commercial interests he represents. But without specific authority for that purpose, he will not be permitted to receive actual restitution of the property in case of its acquittal, but it will be retained to be delivered over to the owner when he applies for it. The Bello Corrunes, 6 Wheat., 152; The London Packet, 1 Mason, 14; the Antelope, 10 Wheat., 66.

How put in.] The first step to be taken by the owner of property seized, when he intends to contest the forfeiture, is to engage the services of a practitioner of the court in which the prosecution is pend

ing, who will at once apply to the clerk of the court CHAP. 3. for a copy of the libel or information.1

It is not usual to file the claim before the return day of the process. This is the time for preferring it which seems to be contemplated by the 89th section of the collection act of 1799; and as it is liable to preliminary objections, and the court may be called on to decide whether it is to be received, a good reason exists for deferring it till this time, admitting that it could regularly be made before. There is, however, a rule in the district court for the southern district of New York, expressly permitting a claim to be filed at any time after the service of the process; and, in the northern district, it is sometimes done in vacation before the return of the process by arrangement with the district attorney. The rule of the court of the southern district is doubtless designed for the beneficial purpose of enabling the claimant to obtain an earlier decision upon his rights, by placing the cause in a situation to be heard and determined at the next term after the seizure. Still, however, it would remain optional with the district attorney to bring the cause to trial at that term or not; and if, in any case, he should be willing to do so, an arrangement for this purpose might be made with him out of court, at the instance of the proctor or attorney for the claimant.

The claim, in itself, is nothing more than a direct assertion, verified by oath, of the proprietary interest of the claimant in the property under prosecution. The oath, when made by the claimant in person, ought to be direct and positive: when made by an

'At this stage of the proceeding the right accrues, as we have seen, to apply for a delivery of the property on bond; and it is a question for the decision of the claimant, under the advice of his proctor or attorney, whether he will exercise this right, and if so, at what time.

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