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October 1, 1880


ERROR to the Superior Court of the city of New York. The case is stated in the opinion of the court.

The opinion of the court was delivered by: Mr. Justice Miller delivered the opinion of the court.

Mr. Charles E. Whitehead for the plaintiff in error.

Mr. William Henry Arnoux, contra.

Alfred E. Lagrave and James D. Otis, partners in trade, were, on a petition filed May 30, 1872, adjudicated bankrupts on the eighth day of the following June. On the first day of the latter month a warrant was issued under the seal of the District Court, in which the bankruptcy proceedings were pending, directed to the marshal of the district, which, after reciting that a previous order had been obtained for the possession of the bankrupts' goods, proceeded as follows:––

'You are therefore required and authorized, immediately upon receipt hereof, to take possession provisionally of all the property and effects of said Alfred E. Lagrave and James D. Otis, and safely keep the same until the further order of the court.'

Under this warrant the plaintiff in error, who was the marshal to whom the writ was directed, seized eight packages of goods. For this act he was sued in the Superior Court of the city of New York by the defendants in error, who recovered a judgment against him for their value, which was finally affirmed by the Court of Appeals.

The case was tried by a jury, the defendant's plea being that the goods were the property of the bankrupts, and were lawfully seized under the warrant for provisional possession.

While it is uncontradicted that the goods had been the property of the bankrupts, evidence was given tending to show that in fraud of the bankrupt law, they had been purchased a few days before by the plaintiffs in this action, and that, when seized by the marshal, they were in the possession of the plaintiffs, or of some one for them. The court gave the jury the following instruction:––

'As you know, the defendant is a United States marshal. He has certain powers given to him by statute. Under a warrant of the kind in evidence (the form of which it is unnecessary to read to you) he has authority to take goods belonging to a bankrupt and which are in his possession. He has no authority under such a warrant to take goods from a third person, having possession for himself of the goods and claiming as a matter of right to be entitled to their possession. If that be the case here, the defendant had no right to take these goods from Mr. Ketchum's warehouse. If Mr. Doyle was, as a matter of fact, in possession of these goods, claiming them as owner for himself, then the plaintiffs, Doyle and Adolphi, are entitled to recover for the value of the goods what you shall find it to be. Otherwise, the defendant is entitled to a verdict. It will be unnecessary for you to inquire as to the reasons of this; but I say to you, briefly, that such a rule of law as that does not finally determine the rights of the parties, because the defendant may only have limited rights to take possession under certain circumstances, while the assignee in bankruptcy for the creditors of Lagrave & Co. might try the question on different principles of law. This defendant is an officer of the law, with certain limited powers.'

This charge, to which an exception was taken, was decisive of the case, there being no doubt that persons other than the bankrupts had, under claim of title, the possession of the goods at the time they were seized under the warrant. The defendant asserted a right to them, under the laws of the United States, on the ground that the pretended purchase by the plaintiffs was a fraud upon the bankrupt law, and passed no title; that the ownership was by virtue of the bankruptcy proceedings, in the assignee; and that the plaintiffs were not entitled to recover. The right so claimed was decided adversely to the defendant. The instruction was affirmed in the court of last resort, and its soundness depends upon the authority conferred on him by the writ. The case is, therefore, a proper one for a writ of error from this court.

The writ in the marshal's hand is identical in its mandatory part with sect. 5024 of the Revised Statutes, and, if he did no more than it commanded him, was a sufficient justification for his act, unless the statute is unconstitutional. This is not pretended, either here or in the State courts.

It is a little difficult to see upon what principle the plaintiffs can maintain the suit, if they were not the rightful owners of the goods. It is true that, in a case of naked trespass without claim of right in the trespasser, the ossessor of the goods may recover, without regard to the state of the title. But such is not the case here. The defendant acted under a lawful writ from a court having jurisdiction to issue it. By his plea he took upon himself the burden of proving that the goods were subject to seizure under the writ; and in doing so he must, of course, prove that the plaintiffs were not the lawful owners of them. In other words, that the right of the assignee in bankruptcy, whose right he represented in that suit, was superior to that of plaintiffs.

But the court said: 'You shall not be permitted to prove that. If plaintiffs show that they were in possession, asserting ownership, you will not be ...

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