Pelham v. Rose

Citations

• 76 U.S. 103
• 19 L. Ed. 602
• 9 Wall. 103
• 1869 U.S. LEXIS 947

Syllabus

<p>1. The seizure of the property of which a forfeiture is sought by proceedings had under the act of Congress of July 17th, 1862, “to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes,” is the foundation of the subsequent proceedings. It is essential to give jurisdiction to the court to decree a forfeiture.</p> <p>2. By the seizure of a thing is meant the taking of the 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.</p> <p>3. Where a writ of monition issued upon a libel of information, filed by the United States against a promissory note, commanded the marshal “ to attach the note, and to detain the same in his custody v/ntil the further order of the court respecting the same;” and the marshal returned the writ with his indorsement thereon that he had “ arrested the property within mentioned;” Held, in an action against the marshal for a false return, 1st, that due and legal service of the writ required the marshal to take the note into his actual custody and control; and 2d, that the return of the marshal signified that he had actually taken the note into his custody and under his control.</p> <p>4. The court will decline to answer a question certified to it by the Circuit Court when it rests upon an hypothesis. -</p>