
    Josiah Hoit versus Josiah Hook, Jun.
    The certificate of the district judge of the United States Court, that an officer, who had seized property as forfeited, had reasonable cause for the seizure, has no operation to bar an action by the successful claimant, unless the property be restored.
    This was an action of trespass, for. taking and carrying away twenty-one oxen, one cow, and one steer, the property of the plaintiff. The general issue was pleaded, and liberty reserved and allowed to give in evidence any special matter in justification, as it pleaded.
    At the trial of this issue, which was had before Wilde, J., at the sittings here after the last June term, it appeared that the defendant, at the time of the taking, &c., was collector of the port of Penobscot, and duly qualified to act in that office; and that the said cattle were seized by his order, as liable to forfeiture and condemnation, to the use of the United States.
    
    The defendant read in evidence a copy of a decree of the district judge for the district of Maine, a copy *of which came up in the case, and relied for his justification on the certificate of the said judge, that there was reasonable cause for the seizure, &c.
    [The said decree recites the libel filed by the district attorney in behalf of the United States, in which it is alleged that the now defendant ordered the said cattle to be seized, for that, on the 22d of September, 1814, certain citizens of said states, unknown to the said attorney, attempted to transport the same to Castine, then occupied by the enemies of the United States, being an article of provisions, intended for the supply and support of the said enemies, whereby they had become forfeited, &c. A second count in the libel alleges an attempt to transport the same cattle to some place in New Brunswick.
    
    After public notice, the now plaintiff came into the District Court, claimed the cattle, and traversed the allegations in the indictment; and issues being joined by the district attorney, a verdict was returned that the allegations in the libel were not supported.
    Whereupon it was decreed by the district judge that the cattle were not liable to forfeiture; and it appearing to the court that there was reasonable cause of seizure, and that an expense of 384 dollars and 43 cents had been incurred for the necessary sustenance and custody of said cattle, it was further ordered that 151 dollars 57 cents, being the net amount of the sales of the cattle, after deducting the expenses incurred and allowed as aforesaid, be paid over to the claimant.]
    A verdict was taken for the plaintiff by consent of parties, subject to the opinion of the Court, upon the question of law applicable to said supposed matter of justification. And if the Court should be of opinion that the said certificate of the district judge was sufficient in law to justify the defendant in seizing said cattle, and selling the same, and retaining from the amount of the proceeds of the sale the said sum of 384 dollars 43 cents for the sustenance and custody of said cattle, agreeably to the decree and direction of the said district judge, the verdict was to be set aside, and the plaintiff * to become nonsuit; otherwise judgment was to be entered according to the verdict.
    
      Perham, for the defendant,
    contended that his conduct was justifiable, as being merely the performance of a duty enjoined upon him by the government of the United States, of which he was an officer.
    
      By U. S. Stat. 12 Cong. c. 129, <§> 2, the attempt to transport any articles of provision from any part of the United States to any place in Upper or Loiver Canada, Nova Scotia, or Neiv Brunswick, is prohibited, and such are declared forfeited, &,c. And by § 3, collectors of the several ports are authorized to seize such articles so attempted to be transported, &c.
    By U. S. Stat. 5 Cong. c. 128, $ 89, when, in cases of seizure, judgment shall be given for the claimant, if it shall appear to the court, before whom the trial shall be, that there was a reasonable cause of seizure, the person who made the seizure shall not be liable to any action, suit, or judgment, on account of such seizure; provided the goods be forthwith returned to the claimant. The same provision is reenacted by U. S. Stat. 13 Cong. c. 93, $ 7.
    In this case, the District Court having directed the cattle to be sold, it was impossible for the collector to return them. He did what was equivalent; he forthwith paid over the proceeds to the claimant, deducting only the costs of keeping them, as allowed by the court. Had they not been sold, the expense of keeping them would have exceeded their value, and there must have been a total loss of the property.
    But the plaintiff has misconceived his remedy in bringing his action in this Court. The defendant did his duty in instituting the process. After it was commenced, it was out of his control, and he is not answerable in any other forum. If the plaintiff was dissatisfied with the issue of his claim in the District Court, he should have sought his remedy in the courts of the United States having appellate jurisdiction. It is humbly insisted that the decision of the District Court, upon a matter confessedly within its jurisdiction, and not appealed from, * cannot be animadverted upon or called in question in this Court.
    
      Mellen, for the plaintiff,
    admitted that there had been an order of the District Court for the sale of the cattle; but as they were not perishable articles, there was no authority vested by law in the Court to make such an order. The cattle having been decreed not liable to forfeiture, the claimant had a right to the possession of them in kind. It is no excuse or defence against this right, that the support of them would have exceeded their value. That was ho concern of the claimant. The provisions of the statute of the United States, protecting their officers in cases of this kind, are expressly on the condition that the articles seized are forthwith restored. The certificate of the judge, as to a reasonable cause of seizure, is of no avail; is entirely without effect, unless this condition be absolutely complied with. That certificate makes no part of the judge’s decree ; it is, then, difficult to conceive what remedy the claimant could have had by applying to a court of appellate jurisdiction, for a further remedy on that process. When the jury, by their verdict, had supported the claim, the District Court had nothing further to do in the cause but to award a restoration of the cattle. In taxing the costs of keeping, and deducting them from the proceeds of the cattle, it acted wholly without its jurisdiction.
   Per Curiam,.

The decree of the judge, founded on the verdict of the jury, having liberated the proporty seized, it ought to have been restored to the claimant. The certificate of the judge, of reasonable cause, can operate to bar an action only when the property is restored, according to the proviso in the statutes. The deduction of the expenses does not appear to be justified by any law; and the sale of the property, under an order of the judge, which appears to have no legal authority, cannot affect the plaintiff’s right to recover the full value of the chattels of which he has been deprived.

Judgment on the verdict.  