
    *Imlay against Sands.
    Probable cause of seizure is no justification for a collector of the customs or other officer making seizures under the revenue laws of the United States.
    This cause came before the court on demurrer. It was an action of trespass against the defendant, collector of the customs at the port of New York, for seizing and taking, in April, 1799, the plaintiff’s brig and her cargo, under the act of the 13th June, 1798, (United States Laws,'V. 4, p. 129,) suspending the commercial intercourse between the United States and France, and the dependencies thereof.
    The declaration was in the common form, to which the defendant pleaded, 1st. The general issue ; and, 2d. Actio non, “ Because that at the time when the trespass aforesaid in the -declaration aforesaid mentioned is above supposed to be committed, and long before and afterwards, the said Joshua Sands was collector of the customs of the district of the city of New York, to wit, at the city and ward and . in the county aforesaid ; and the said Joshua further saith, that after the .first day of July, in the year of our Lord one thousand seven hundred and ninety eight, and before the end of the session of congress next after the tenth day of June in the same year, to wit, on the eleventh day of March, in the year of our Lord one thousand seven hundred and ninety nine, upon waters navigable from the sea by vessels of ten or more tons burden, in the district of New York, to wit, at the city and ward and in the county aforesaid, John Lasher, Esquire, surveyor of the customs for the district for the city of New York, by the command of the said Joshua, (he the said Joshua being then and there collector of the customs fort he district of the city of New York as aforesaid,) did seize to the use of the said United States as forfeited, the said brig and the coffee and sugar in the said declaration mentioned, the same coffee and sugar being then and there the cargo of the said brig, for that the said brig after the said first day of July, and before the end of the session of congress next after the thirteenth day of June, in the same year of our Lord one thousand seven hundred and ninety eight, to wit, on the [*■567] first day of September, one thousand seven hundred and ninety-eight, at the city and ward and in the county aforesaid, being then owned by a person resident within the United States of America, to wit, by one John Vaneman, a person residing at Philadelphia, that is to say, at the city and ward and in the county aforesaid, departed on a voyage from the United States, to wit, from Wilmington, in the state of North Carolina, that is to say, from the city, ward and county aforesaid, for the Island of St. Thomas, in the West Indies, and before her return within the United States, to wit, on the first day of January, in the year of our Lord one thousand seven hundred and ninety-nine, was allowed to proceed from thence to a port'in the West Indies under the acknowledged government of France, to wit, to Port Liberty, in the island of Hispaniola, contrary to the form of the act of congress of the United States of America, entitled, An act to suspend the commercial intercourse between the United States and France, and the dependencies thereof; and the said Joshua Sands further saith, that afterwards to wit, on the ninth day of April, in the said year of our Lord one thousand seven hundred and ninety-nine, a libel was filed for and on the behalf of the said United States, in the district court of the said United States, for the New York district, held at the said city, against the said brig and her said cargo, by the attorney of the said United States for the said district, praying that the said brig and her cargo might, for the cause aforesaid, and others appearing, be condemned as forfeited to the use of the said United States, and such proceedings were thereupon had in the said court, that the said brig and her said cargo, afterwards, to wit, on the eleventh day of July, in the same year, were, by the sentence and decree of the same court, at the city and ward and in the county aforesaid, condemned, and adjudged to be forfeited to the use of the said states, which sentence and decree remained in full force and virtue, until the same was, after-wards, to wit, on the first day of September, in the said year of our Lord one thousand seven hundred and ninety-nine, reversed by the judgment *and decree [*568] of the circuit court of the United States, for the district of New York in the eastern circuit, to wit, at the city and ward aforesaid; and the said Joshua further saith, that the seizing of the brig aforesaid, and her said cargo, for the cause aforesaid, is the same taking away of the said . brig, coffee and sugar in the declaration above mentioned, and this he is ready,” &c.
    To this plea was subjoined a notice of giving all the several facts it contains in evidence, and also that the judge of the district did, bn, &c. “ at a district court of the said states held in and for the said district, at the city and ward and in the county aforesaid, certify that the defendant had probable cause for the said seizure.”
    The plaintiff joined issue on the first plea, and to the second demurred generally.
    
      Hoffman, for the demurrant.
    The only question is, whether the facts set forth on the record be a sufficient justification of Sands, the collector, for the trespass with which he is charged. It has long been settled that probable cause of seizure cannot be urged by a custom-house officer in excuse, if the event prove that .there was no legal and actual reason for the taking. In Leglisle v. Champante, 2 Stra. .820, the defendant had seized several hogsheads of French wines belonging to the plaintiff, under pretence of .their being lees; on an information in the exchequer it was determined against him, and in an action by the plaintiff for the trespass, the court, on debate, held that in these cases the officer seizes at his peril, and that probable cause is no defence. So in Bostock v. Saunders, 2 Bl. Rep. 912, the same principle is recognized and extended; for there the officer acted under a warrant obtained on oath from the commissioners of excise, (10 Geo. I. 6, 10, s. 12 and 13,) who were authorized to grant it on an affidavit of a suspicion that the revenue laws had been infringed. The same case is to be found in 3 Wils. 434, where the court will perceive that the doctrine is a little more strongly laid down. It is there said that notwithstanding the provisions of the 13 and 14 Car. II. c. 11, s. 32, which gives the writ of assistance in revenue cases, and enacts that all per-[*569] sons acting under it shall be *saved harmless, yet if he who enters under it find nothing, he is a trespasser ab initia. To support the grounds of this action is no more than consonant to reason and justice. The court, on viewing the result of a contrary procedure, will certainly strengthen the positions we have taken with all their power. It is peculiarly necessary in this country; we have not a statute like that in England as to seizures on the oath of a third person. Every thing here is left to the discretion c f the custom-house officer, and the property of each individual exposed to the attacks of a collector or other officer who is interested in having it condemned. It is indispensable, therefore, that every legal check should be laid on their proceedings, and if the defendant suffer in this action, he may, perhaps, have redress from the United States.
    
      Hanson, contra.
    As to the point of probable cause, it may, in general, be a true principle that it is not a justification if there be no real cause. But on recurring to the provisions of the federal law as to the duty of collectors, it will be seen to be specially enacted, (Laws U. S. vol. 4 p. 429, March 2, 1799, c. 128, s. 89,) that wherever a prosecution shall be commenced on account of any seizure if reasonable cause of such seizure appear to the court before which the prosecution is tried, the court shall cause a proper certificate or entry to be made of it, and in such case the person who made the seizure, or the prosecutor for such seizure, shall not be liable to action, suit or judgment on account thereof. That this has been literally done is not insisted, but whenever sentence has been passed, and the property condemned, it is tantamount .to a certificate. For it is the judgment of the court that there was real cause. But it is not on this that it is intended to rest our defence; we mean to consider the case on its merits. In this view, therefore, the court will consider whether the facts actually on the record, and now before the court, do not plainly show a forfeiture under the. act of congress suspending the intercourse with France. The words of that act expressly declare “ That no ship or vessel, owned, hired or employed., wholly or in part by any person resident within the United States, and which shall depart therefrom after the first day of July next, (July 1798,) shall be allowed to proceed directly, or from any intermediate port or place, *to any port or [*570] place within the territory of the French Republic, or the dependencies thereof, or to any place in the West Indies, or elsewhere, under the acknowledged government of France, or shall be employed in any traffic or commerce with or for any person resident within the jurisdiction or under the authority of the French Republic, and if any ship or vessel in any voyage thereafter commencing, and before her return within the United States shall be voluntarily carried or suffered to proceed to any French port or place as aforesaid, or shall be employed as aforesaid, contrary to ihe intent thereof, every such ship or vessel, together with her 
      cargo, shall be forfeited, and shall accrue the one half to the use of the United States, and the other half to the use of any person or persons, citizens of the United States, who will inform and prosecute for the same; and shall be liable to be seized, prosecuted and condemned in any circuit or district court of the United States, which shall be holden within or for the district where the seizure shall be made ”
    It is further enacted, “ That after the first day of July next, no clearance for a foreign voyage shall be granted to any ship or vessel owned, hired or employed, wholly or in part, by any person resident within the United States, until a bond shall be given to the use of the United States, wherein the owner or employer, if usually resident or pre sent where the clearance shall be required, and otherwise his agent or factor, and the master or captain of such ship or vessel for the intended voyage shall be parties, in a sum equal to the value of the ship or vessel and her cargo, and shall find sufficient surety or sureties to the amount of one half the value thereof, with condition that the same shall not, during her intended voyage, or before her return within the United States, proceed, or be carried directly or indirectly to any port or place within the territory of the French Eepublic, or the dependencies thereof, or any place in the West Indies, or elsewhere, under the acknowledged government of France, unless by distress of weather, or want of provisions, or by actual force or vio[*571] lence to be fully proved and manifested *before the acquittance of such bond; and that such vessel is not, and shall not be employed during her intended voyage, or before her return as aforesaid, in any traffic or commerce, with or for any person resident within the territory of that republic, oi in any of the dependencies thereof.”
    All these facts, thus set forth in the act as working a forfeiture of the vessel and cargo, are expressly stated in the plea. The vessel is alleged to be the property of Vaneman, a person resident in Philadelphia; to have been x.luntarily carded k> Port Liberty, in Hispaniola, a port under the acknowledged government of France ; in short, every circumstance specified by the act is spread on the record, and consequently the vessel must be liable to seizure. .If this appears fully to the court, it is enough, and the forfeiture is an inference of law which they are, from the pleadings, authorized to draw. If so, the statement of a contradictory sentence is immaterial, and makes no difference in the reasoning. If the defence is sufficient, without the sentences, it is enough. On the facts taking place the forfeiture attached; and these appearing on the pleadings are data for the court to go upon, and preclude all argument against there not being an actual and real cause of seizure. ' In Lockyer v. Offley, 1 D. & E. 252, the court, on the circumstances in the case, drew the inference that a forfeiture had attached, and decided accordingly. So in Wilkins v. Despard, 5 D. & E. 112, the fact of forfeiture being admitted by the pleadings, the court would not allow the legality of the seizure to come in question on the record. The subsequent matter of condemnation is immaterial, and of course the reversal; because there is a perfect evidence previously on the record that shows a forfeiture. For the doctrine as to averments and allegations the court will see sufficient authority in Williamson v. Allison, 2 East, 452. It is there said by Lawrence, J. “ With respect to what averments are necessary to be proved, I take the rule to be, that if the whole of an averment may be struck out without destroying the plaintiff’s right of action, it is not necessary to prove it, but otherwise, if the whole cannot be struck out without getting rid of a part essential to the cause of action; for then, though the averment be more particular than it need have been, the *whole must be prove'd or the plaintiff cannot f*572] recover.” Apply this doctrine to the pleadings; strike out all beyond the facts, and the defence Is complete; therefore, the residue need not be maintained, and th<5 court will go on what is sufficient for the defence. It may be said that Vaneman did not send the vessel; but this, if material, ought to have been stated, for it might have varied the case.
    
      Hoffman, in reply.
    We do not disagree on general principles; that is, though Sands had probable cause of seizure, still he would have been liable to the plaintiff. It is contended that the record sets forth enough to have led to a forfeiture and condemnation, and therefore the court must lay out of the question all beyond the forfeiture, and judge that there was a real, and not a mere probable cause. The court will determine on the whole record, and not take up a part, to say the court of the United States has not decided according to law. This is a question under the laws of the United States. To them the defendant applied to be judged; we pursue that judgment through his own tribunals, the courts of his own chasing; and they decide against him. This decision is pronounced in a court of exclusive and adequate jurisdiction. It would be nugatory to make any determination contrary to the judgment of the federal courts, because even now the present suit may be carried up to them. If the effect of the statute is to be considered, that might have been done, and the plaintiff punished under it. The court will see in the second section the penalty of the bond is the consequence of certain infringments, that may have been pronounced, and the vessel declared not forfeited. If the judgment was wrong, Sands might have appealed further, but he has himself acquiesced.
    
      Harison.
    
    We do not consider ourselves concluded by the decision of the United States’ court. Suppose the evidence there in our favor was defective, and we afterwards acquire full proofs in our justification, shall we not use them ?
    
      Hoffman.
    
    You should then have stated them in your plea; that merely follows the words of the act, and nothing further is to be intended.
   Thompson, J.

delivered the opiiyon of the court.

The facts detailed *in the defendant’s plea are ad- [*573] mitted by the demurrer to be true; and the question then arises whether those facts will afford a justification to the defendant. It is said that the sentence of condemnation in the district court evinces that there was probable cause for this seizure, and will afford grounds of justification for the defendant, who was acting as a public officer. 'Admitting there was probable cause for the seizure, still this will not shield the defendant from responsibility. In the case of Leglise v. Champante, 2 Stra. 820, it was expressly decided, that in such cases the officer seizes at his peril, and that a probable cause is no defence. This point seems fully settled in a variety of cases. The officer here is a mere volunteer, and acts at his peril, and his justification depends on the event. 3 Wil. 440. 2 Black. Rep. 912. It is not like the case of a ministerial officer who acts under process which he is bound to execute. That there was no real ground for the seizure appears by the defendant’s own showing. He states that the sentence of condemnation pronounced by the district court was, on appeal, reversed by the judgment of the circuit court. The act of congress under which the seizure was made, makes no provision for the exoneration of the custom-house officer. Nothing appears but that the defendant acted in good faith, and although it would seem reasonable that where the officer acted bona fide, and according to his best judgment, he ought to be protected, yet we are bound to pronounce the law as we find it, and leave cases of hardship, where any exist, to legislative provision. Lord Kenyon, in the c$se of Warne v. Varley, 6 D. & E. 448, treats this question as long since at rest in England. He says that custom-house officers were, until a late act of parliament, (19 G. II. c. 34, s. 16,) was passed to protect them, liable to an action for seizing goods if it ultimately turned out that the goods were not the- subject matter of seizure, even though there was a probable cause for seizing them.

We are therefore of opinion, the plaintiff ought to have judgment.

Judgment for the demurrant. 
      
      
         The supreme court of the United. States has determined that a commander of a United States ship is liable to damages for captu. ing a vessel when there is not a probable cause for seizure; Maley v. Shattuck, 3 Cranch, 458, though he has acted bona fide, and from a belief that it was his duty to send her in; Murray v. Charming Betsey, 2 Cranch, 64, and that the instructions of the president are no justification any further than those instructions are warranted by law. Little v. Barreme, 2 Cranch, 70. In this last case whether probable cause of seizure be a justification is queried.
      
     