
    Van Brunt and another against Schenck.
    ALBANY,
    August, 1814.
    1ihevescpIof A. was seized by B.» an officer of üi? tustoms, under the revenue laws skies ¡ »ho'réS-directed Mm to detain the vessel. While the vessel was thus under seizure, tody’of bJ s'.6," Jested w?t¿ntte JhJcnJtomTjrf a1.1 seizur.-s, B. made use of the vessel in. transporting for “two Sd,°y?¡ JüjLd'hJr r||,“tod1yt°oftR lhe ,place
    being libelled in tne instance court, was soM court*; * and *on waiS^Vasí^ pj^dsof the Repaid Jwto A., who, however, declined rece*Vtí them.
    Thejudgmeni of the court was accompanied with a certificate of probable cause of seizure, agreeably to the act of congress of the 2d of February, 18U7 {Laws of (he United Siuho, roí. 8. p.
    
    A. brought an action of trespass against S. V: was held, that S., not being implicated in the fir:t taking, either as an actor, or standing in such relation to B. as would make him a party in the act <:f seizure, could not be made a trespasser ab initio. That A. had not, after the seizure, and at the time that S. made use of the vessel, the possession of her, or a right to reduce her to his actual possession, v, I,:, a xvas essential to maintain an action of trespass. It seems that the leave given to F. by B. to tali'? the vessel, and use her, would not make B. a trespasser ■<£> initio, so a? thereby te reinvest A. with Lis ' of property, or right to reduce the vessel info his pojs ejs:o»s
    THIS was an action of trespass, tried before the late Chief Jusiicc, at the New-York sittings, on the 2d of December, 1813. ’ 0
    The declaration stated, that tne defendant, on tne 6th of _ . , , „ _ , October, with force and arms, &c. at tlie city 01 Nen-xortc, seized, took, and carried away, a certain schooner, or vessel, called the Nancy, &c. belonging to the plaintiffs, of the value of 2,500 dollars, and converted and disposed of the same to his own use, &c. The defendant pleaded the general is-7 r o gU06
    It was proved, at the trial, that the schooner hancy9 owned by the plaintiffs, was seized by tlie officers of the government of the United States; that on the 27th of October, 1809, while the schooner was so under seizure, and in possession of the officers of the United States, he took the vessel, or directed his agent to take her, from the place where she lay, at Coenties slip, in the city of Iseiv-Yorlc, to s;o with her to Hornes5 tY vi . , ■ „ - c Hooky about eight miles from the city, and bring some furniture from the country-seat of the defendant to the city. That the vessel was accordingly taken, on the 27th of October, and was not returned to the place from whence she y/as taken until the 29th of the same month. Tt was proved, that the defendant, afterwards, acknowledged that the vessel was taken by Ms direction, for -the purpose of bringing his furniture from , ° ^ „ the country; and that he oncrcd to pay the piamtifTs for the use of the vessel, on that occasion, which the plaintiffs dedined to receive, but referred the defendant to their attorney. The vessel, at the time of her seizure, was worth about 800 dollars. The defendant, at the time of her seizure, was one of the officers of the customs, at the city of ~ New-York.
    
    On this evidence being given, the defendant moved for a ^ v • On this evidence being given, the defendant nonsuit, which was refused by the Chief Justice.
    
      The defendant, then, offered to prove, that William Van Bcuren seized the vessel, without orders from the defendant, and reported to the collector of the customs, Mr. Gelston, 'yhat he had done, who directed Van Beuren to detain the vessel; that the defendant made use of the vessel, as above stated, with the permission of Van Beuren, and with the knowledge that she ivas so seized. That the vessel was, afterwards, libelled and sold by order of the district court of the United States, and was, afterwards, acquitted, and the proceeds of the sale ordered to be páid to the plaintiffs. The defendant offered to show these facts, by the judgment and decree of the district court; and, also, that a certificate of probable cause had been given.
    The Chief Justice rejected the whole of the evidence offered by the defendant, as inadmissible, either in justification, or in mitigation, of damages ; and ruled, that the improper use of the vessel by the defendant, while she was under seizure, and in the custody of (he officers of the government of the United States, rendered the defendant liable as a trespasser ab initio, and that he was answerable to the plaintiffs for the value of the vessel, at the time of the seizure ; which opinion was excepted to by the defendant’s counsel.
    The only evidence'admitted by the Chief Justice being as to the value of the vessel, the point was submitted to the jury, under his charge, and the jury found a verdict for the plaintiffs for 600 dollars.
    A motion was made to set aside the verdict, and for a mew trial, on the ground of the misdirection of the judge.
    
      C. Baldwin, for the defendants.
    It was not proved, at the trial, that the defendant made the seizure, by himself, or his agents, directly or indirectly. On the contrary, the defendant offered to prove that Van Bcuren made the seizure, without any direction or authority whatever from the defendant; and having made report to his superior officer, the collector, he confirmed the seizure, and ordered the vessel to be retained. The collector, then, not the defendant, was the person against whom the plaintiffs should have brought their action. Because the defendant is an officer of the custom-house of the United States, it does not follow that the seizure was made by him or his agent.
    
      To maintain trespass, the plaintiff must show that he had the actual or constructive possession of the thing, at the time the trespass complained of was committed. Now, at the time of the a!Iege°d trespass, the vessel was under seizure, by order of the collector, and was in the custody of the law, as forfeited. The plaintiffs had neither the actual, nor the constructive pos~ session of the vessel, nor any right of possession, capable of be~ lug reduced into~ an actual possession.
    But it will be said that the act of the defendant, being unlawful, has relation back to the time of the original seizure, and that by such relation, the plaintiffs were constructively in possession of the vessel. This doctrine of relation, so as to make a party a trespasser ab initio, applies only in cases of taking cattle damage feasant, or abusing a distress, in which case the property is held as a pledge merely, and the title of the owner or tenant is not devested. But in a case like the present, of a seizure for forfeiture, under the revenue laws, the title of the owner is immediately devested, and wholly gone from him, until a decree of restitution. The title of the government, or of its officer, arising from the forfeiture and seizure, is not affected by any abuse of the property, in the intermediate time. So that the doctrine as to trespassers ab initio does not apply.
    If a decree of restitution is made, the original owner may have his action against the person who made the seizure, for any injury done to the property seized. If, however, the decree of restitution is accompanied with a certificate of probable cause of seizure, the officer cannot be made liable in an action of trespass, though, perhaps, an action on the case might lie against him for any abuse of the thing, while under seizure.
    By the eighty-ninth section of the law of the United States for the collection of dnties, passed the ~d of March, 1 199, it is declared, that when any prosecution shall be commenced, on account of the seizure of any ship or vessel, &c, and judgment shall be given for the claimant or claimants, if it shall appear to the court before whom such prosecution shall be‘tried, that there was a probable cause of seizure, the court shall cause a proper certificate or entry thereof to be made, and, in such case, the claimant shall not be entitled to costs, nor shall the. person who made the seizure, nor the prosecutor, be liable ,to any action on account of such seizure or prosecution ; provided the ship, &c. be, after judgment, forthwith returned to 6s claimant or his agent. A general clause, to the same effect, re»¡ayve a¡[ seiz-areg under the authority of the United States., is contained in the act of the 2d of February, ISOf. »
    
      Brinckerhoff and Wells, contra.
    It is a notorious fact, that the defendant, who is inspector of the customs, is the seizing officer of the government in this port, and it was so stated in the libel filed in the district court. If he is not to be made liable in this case, what is to become of all the doctrine as to trespassers a-b initio, and that in trespass ail are principals ? It is con- , ceded by the defendant’s counsel, that if Van Beurcn had abused the thing seized by him, he would have been a trespasser. Now, where is the difference whether the thing is abused by him, or, under his permission, by the defendant, with full knowledge of the seizure, and of all the circumstances ? The defendant, acting with all that knowledge, must be deemed in the place of the person making the original seizure.
    The general principle of law' on this subject is, that wherever a person, who first acts with property under an authority or license given by law. afterwards abuses that authority or license, he becomes a trespasser ab initio.
      
    
    Though an ábuse of an authority in fact, does not make the .... . party a trespasser ab initio ; yet, in the case of an abuse of an authority given by law', in order to save persons who arc the object of it from abuse, the law makes every thing done by him v°id, and leaves him in the same situation as if he acted w-holly without authority. This is a salutary and just principle, founded on the maxim that the law wrongs no man : Actus legis ne~ mini faciat injuriam,
    In the cases cited, the tortious act of the bailiff did not affect the rights of the lord; nor the acts of the sheriff the rights of the creditor. The government of the United States might have gone on to have the vessel condemned, for having violated the law; but this would not affect the rights of the plaintiffs against an officer who has abused the authority given by laxv, and is, therefore, liable, as if he had no authority. .
    If, then, the defendant xvas a trespasser ab initio, he is answ'erf°r Üie value of the thing, at the time of its seizure. 
    
    The defendant, if he pleases, may take the proceeds in the admiralty court to his oxvn use. By the recovery of the value of * 
      Jie vessel against him here, the property will be transferred, and he will have a right to the proceeds.
    
    The certificate of probable cause was properly rejected by the judge, because it ought to have been pleaded. Where a party claims the benefit of an act, he ought to show that he has complied with its provisions. The defendant should have shown that the proceeds, in this case, had been paid to the plaintiffs.
    
      Baldwin, in reply,
    said, it vras true that the abuse of the thing taken might make the party a trespasser ab initio, but that doctrine did not apply to the case of a seizure for a forfeiture by an officer of the government. For, by the forfeiture,^ the original owner being de vested of the property, the government might maintain an action for it; and if the plaintiffs might also bring their action, the defendant would be subject to two suits for the same act, which could not be.
    The defendant did not make the seizure; the action, if any can be maintained, should have been against Van Beuvcn, for his negligence in suffering the defendant to make use of the vessel, while under seizure.
    We-admit that the defendant is the surveyor of the port, and the seizing officer, and that he was interested in the seizure!, but. he is, in all thin gs, subject to his superior, the collector.
    
    We insist, that the defendant, as well as Van Beuvcn, are protected from any action of trespass, by the certificate of probable cause, though they may be liable to an action on the case for the abuse of the thing.
    Under the general issue, any thing may be given in evidence in mitigation of damages.
    
      
       Putnam v. Wyley 8 Johns. Rep. 432.
    
    
      
       Laws U S. vol. 4. p. 273.
    
    
      
      
         Laws of U. S. vol. 8. p. 255.
    
    
      
      
         The Six Carpenters’ Case, 8 Co. 146. Oxley v. Term Rep. 12. Read v. Harrison, 2 Bl. Rep. 1218. phillips v. Bacon, 9 East, 298-303.
      
    
    
      
      
         6 Bac. Ab. 559. Trespass, (B.)
      
    
    
      
      
        Woodham v. Gelston, 1 Attersol v. stepens, 1 Taunt. Rep. 189.
    
    
      
       6 Johns Rep, 163.
    
   Spencer, J.

Being of opinion that an action of trespass cannot be maintained under the circumstances of this case, I shall confine myself exclusively to the consideration of that question.

The schooner was seized by Van Bewen, for a violation of law, and the defendant offered to show, that he gave no orders for that purpose, but that Van Beuven, after he had seized her, reported to the collector what he had done, who directed him to detain her. Whilst the vessel was lying under this seizure, and in the custody of the officers of government, the defend» ánt, who was one of the custom-house officers, with the leave of yan jjeuTEn<¡ an¿ with the knowledge that she was thus seized, took her, made use of her for two days, and then returned her to place from whence she was taken. It was ruled at the triaj, that the improper use of the vessel, while under seizure, and1 in the custody of the officers of government, rendered the defendant liable for the original seizure, and 'made him a trespasser ab initio, and subjected him to damages, to the value of the vessel at the time of, her seizure.

There are no facts implicating the defendant as an actor in the seizure of the vessel, or which show the least cooperation by him in that act, any further than the general fact, that he was one of the custom-house officers.

It cannot be pretended, that the custom-house officers are liable for the acts of each other. Between them, the relation even of master and servant does not exist; and if it did, and the defendant was the superior, which he clearly was not, the acts of Fan Beuren, without his knowledge or assent, either before or after the act, would not make him a trespasser. “ If my servant, without my notice, puts my beasts into another’s land, my servant is the trespasser, and not I.” Kiel. 3. c. 20 Viner, 460. (2. p.1.)

But it is insisted, that the schooner being in the custody of the law, the use or abuse of her, by the defendant, though with the license of the officer who took her, rendered the defendant, and all concerned, trespassers ab initio, and that, therefore, the plaintiffs can maintain trespass against the defendant.

This point is not defensible, unless the defendant is implicated in the first taking, and that he is not the facts plainly show. In every case to be met with in the books, the court, in considering who shall be deemed a trespasser ab initio, for the abuse of a legal trust, confine the action for such an act, to those who were either the actors in the first taking, or to such as by the relation they stood in to the first takers, made themselves parties, by their assent before or after the act. It would be palpably absurd to say, that a man totally unconcerned with the original caption of goods, shall, for an after act to those goods, be deemed to have originally taken them. Such absurdity and bad logic is not chargeable to our law. On a point so clear I have not thought it necessary to refer to the numerous cases and elementary writers on the action of trespass.

Still, however, it is contended that Van Beuren, having no right to use the vessel, could impart none ; and the plaintiffs having the general property, possession followed it, and that both uniting, they could maintain trespass against the defendant, and more especially, as the defendant knew the vessel was under seizure.

It is, undoubtedly, a well-settled rule, that to enable a party to maintain trespass, whether upon lands or on goods, he must have either the actual or constructive possession, at the very time of the commission of the injury. This point came under full consideration in Putnam v. Wyley. (8 Johns. Rep. 432.) We there approved of the decision in Ward v. Macauley, (4 Term Rep. 483.) and said, “ that case was no more than a recognition of the settled principle, that a plaintiff cannot bring trespass for taking a chattel, unless he has the actual or constructive possession at the time. He must have such a right as to be entitled to reduce the goods to actual possession when he pleases.”

In the case of Ward v. Macauley, Lord Kenyon said that the distinction between trespass and trover was well settled. The former is founded on possession; the latter on property; and he held, that as the plaintiff had no possession of the chattels, when the supposed trespass was done, his remedy was by action of trover, founded on his property in the goods; and in Gordon v. Harper, (7 Term Rep. 11.) he retracts that part of his opinion, that trover would lie under the circumstances of the case, but confirms his former opinion in every other respect.

When the defendant took the vessel, the plaintiffs were clearly dispossessed of her; nor had they then a right to reduce her to actual possession, for she had .been seized under the authority of the law, and was then in the custody of the law, adversely to the plaintiffs’ claim of property. Still, however, it is urged, that Van Beuren was, at all events, a trespasser ah initio, by his licensing the defendant to use the vessel, and that this act reinvested the plaintiffs with their first right of property, and also the right to reduce the vessel to their immediate possession ; and it is, consequently, contended, that the rule laid down in Putnam v. Wyley is not infringed by sustaining this action. It seems to have been forgotten by the counsel who urged this argument, that Van Beuren’s giving leave to the defendant to take iflie vessel, is not an act which would even render him a trespasser ab initio. It was the act of taking her and using her* which alone could produce that effect; • and not until after the commission of that act, would Van Bcuren have violated the authority given him by law to seize and hold the vessel. The-act of taking and using the vessel is indivisible; when the defendant first entered on it, it must be admitted the plaintiffs had neither the possession nor the right to reduce the vessel to their possession, and, therefore, at that time, they had no right to bring trespass. To maintain that trespass would lie against the defendant, the counsel must be driven to the necessity of splitting up the defendant’s act, and making him a trespasser, not for-entering on board the vessel and casting off her fasts, but for sailing in her. This mode of considering and treating the ao»" tion, may well be pronounced an anomaly in the law of trespass, without precedent, and without authority. The true and only test is, to consider whether, when the first act was done, which consists of a series of acts, the defendant was guilty of trespass towards the plaintiffs. If he was not, then he cannot in this case be so afterwards. It is not necessary to consider how far the defendant might be a trespasser, if he had afterwards wilfully destroyed the vessel. That is not this case.

I might stop here, resting on the decision of this court, in Putnam v. Wtjley, but as the counsel argued this cause with a zeal which I by no means disapprove, I will see whether, in deciding that this action is not maintainable against this defendant, we do not decide in strict conformity with general and well-settled principles. !

Trespass does not lie for goods which a man has lawfully» though the possession of him from whom he had them was' wrongful: as if A. takes the horse of another and sells it to B.y< trespass does not lie against B.” (Com. Dig. Trespass, D. 396.) “ It a man takes my horse by force and gives it to S'./or if S. takes it from him with force, in this I shall not have trespass against the second offender, for the first offender had gained property by the tort;” per Brian and his companions. (Br. Tres. 358. 20 Vin. 462. R. 3. p. 1.)

In Case v. Goes, (3 Caines’ Rep. 261.) the plaintiff sued the defendant for cutting and carrying away logs, after notice of title, and after being forbidden. The defendant justified under a license from one Bull, who, at the time of the trespass, was im possession under a writ of restitution, awarded On ap indictment against the plaintiff for a forcible entry, which was afterwards quashed for irregularity, and re-restitution awarded. The point was, whether the defendant was answerable to the plaintiff In trespass, for an act done whilst he was out of possession, notwithstanding the defendant had full notice of the plaintiff’s title, azid was forbidden. The court unanimously held, that trespass would not lie. Bull was considered a trespasser by relation, and answerable for the damages; and with respect to the doctrine of relation, it was held that it should not extend to strangers, but applied only to the same parties, and annulling an act, ab initio, to advance a right; that the defendant’s being warned could not affect the question, and it was enough tha6 Bull was in possession.

This case fully shows, that the doctrine of relation is not to be extended to the defendants; and it bears strongly on the point, that the plaintiff cannot maintain trespass for an act done whilsS he was dispossessed of his vessel, by legal authority, and with the leave of the person holding possession. It may be objected that it is inapplicable to trespass de bonis asportatis. But I perceive no difference, in principle, between the two actions, as to the point now under consideration. In the case of personal property, if the general owner parts with the possession, and the bailee has a right to use the thing, the general owner cannot maintain trespass for an injury done by a stranger; the right of possession being in reversion.

So as to lands; the lessor or party out of possession, If the lands be held adversely, cannot maintain trespass, because, in the one case, his right is reversionary, and In the other, it is suspended. We have carried the principle, as to real property, further than has been done in England; and we allow the owner to maintain trespass without actual entry, on the principle, that the possession follows the ownership, unless there be an adverse possession.

In whatever light, therefore, this case may be considered, the plaintiff cannot maintain the action; and there must be a new trial, with costs, to abide the event of the suit

Thompson, Gk J. and Taxes, J. wer e of the same opinion*

Van Ness, J.

Whether this suit can be maintained strictly an the principle that t,fe@ defendant is a trespasser by rc-lsdlo’». it is sot material to inquire; because I think he is liable, 1b this form of action, on another ground.

It has long been well settled, that actual possession is not necessary to enable the owner to maintain trespass or trover, as it respects personal property. It is. otherwise, where the suit is brought for trespass upon real property. There the gist of the action is the injury to the possession; and unless the plaintiff was in actual possession at the time the injury was committed, trespass cannot be supported.

This rule has been rigidly adhered to, even in cases where it might haye been dispensed with, without interfering with the reason upon which it was founded: as in the case of Bennett v. Ward, (3 Caines’ Rep. 259.) Campbell v. Arnold, (l Johns. Rep. 511.) Tobey v. Webster, (3 Johns. Rep. 463.) But for an injury done to a personal chattel, the person who has the general property, provided he is entitled to immediate possession, may support this action, although he has never had actual possession. The general property draws to it the possession so as to enable the owner to maintain trespass. And this rule holds even by relation; as in cases of executors and ■ administrators, who may maintain trespass for an injury done to the goods of their testator, or intestate, after his death, and before probate or administration. So may a legatee, after the executor has assented to the legacy, for a trespass committed before such assent.

The law creates a constructive possession in the owner, in all these instances, .sufficient to maintain the action. The only exception is, when the general owner parts with his possession, in such a manner as to give the bailee a right to use the thing, and where the right of possession rests in reversion only. (2 Saunders, 47. in note, and cases there cited. Smith and mother v. Miller, 1 Term Rep. 475. Gordon v. Harper, 7 Term Rep. 9.)

In the case of Ward v. Macauley, (4 Term Rep. 439.) Lord Kenyon expressed an opinion, that there was a distinction between the actions of trespass and trover; that the former was founded on possession, and the latter upon property; but in Gordon v. Harper, a few years after, he retracted this opinion, to which he acknowledged, upon further consideration, he could hot subscribe.

The plaintiffs, in this case, were the undisputed own-'¿rs of the schooner, until she was unlawfully seized by Fan Beuren„ I say unlawfully, because, as she was acquitted in the district court, were it not for the certificate of probable cause, Van Beuren might have been prosecuted as a trespasser for the original taking. This certificate, however, can, in no way, protect either Van Beuren or the defendant against an action for their illegal use of the vessel after the seizure. That Van Beuren became a trespasser, from that moment, ab initio, is not questioned. The cases cited on the argument are decisive on that point. The certificate of probable cause would afford him no protection against an action of trespass founded upon the abuse of his authority. “ When the law has given an authority or license, it seems reasonable that the same law should, In order to secure the persons, who, without their direct assent, are made the objects thereof, from all positive abuse of such authority or license, make the same void from the beginning, and leave the abuser thereof In the same situation as if he had acted without any authority or license.” (6 Bac, Ab. tit. Trespass, B.) I cite this book, because in no other Is the law, on this subject, laid down with equal precision and accuracy.

From the moment, therefore, Van Beuren lent this vessel to the defendant, his official character was lost, and he is to be treated like any other private individual, who wantonly and illegally wrests from another Ms property. The law will adjudge, by the subsequent tortious act, quo animo the first taking was made; for, acta exteriora indicant interiora secreta. (Six Carpenters’ Case, 8 Rep. 145.)

This being the situation in which the law has placed Van Beuren, let us see how the defendant stands, who is also a custom-house officer. He had, it appears, a country seat, about eight miles from the city of Nem-York, from which he was desirous to remove the furniture to his town house-; and for this purpose he applied to Van Beuren for the use of the plaintiff’s schooner, who consented that he might take her. The defendant, accordingly, brought his furniture in the vessel, from his country seat to the city, and employed her, in plying between the two stations, for about two days; well knowing that Fan Beuren had no other right to the vessel than what he derived from the original seizure, and knowing also, (for every man is presumed to know the law,) that he was guilty of a wrong t0 the plaintiffs, when he made use of their property f°r his own private purposes and accommodation, without their consent.

The vessel ceased to be in the custody of the law, after Fan Beuren had parted with her to the defendant, for a purpose utterly repugnant to his duty, as a public officer, and by which he, confessedly, became as much a trespasser as if he had acted without any authority or license from the beginning.

While this vessel was in the employment of the defendant, he held her by wrong, and the plaintiffs had a clear and incontestable right to resume the possession of her, if they were disposed to exert it, wherever they found her. This right results "as a direct and necessary consequence of that principle of law by which Fan Beuren is -deemed to be a trespasser ab initio. He stands “ in the same situation as if he had acted without any authority.” Like every other trespasser, his possession was tortious; and the owner might, at his election, either have affirmed the possession and property in him, by bringing an action of trespass, or he might have brought replevin, to have the thing taken restored to him, and recover his damages for the first taking. This was so decided in the case of Hopkins v. Hopkins; (10 Johns. Rep. 369.) and the same doctrine. Will be found in Bishop v. Montague, (Cro. Eliz. 824.)

A moment’s consideration will show, that if the plaintiffs were entitled to the possession as between them and Fan Beuren, they are equally so as between them and the defendant. What right had he to the possession of the vessel ? If the plaintiffs could have taken her from Fan Beuren after he became a trespasser, does it not follow, that they had the same power after she came into the hands of the defendant, in consequence of an act flagrantly illegal, to which both he and Van Beuren were parties ?

It seems to be admitted, that the defendant is bound, in some form of action, to compensate the plaintiffs for the use of the vessel. Does not this demonstrate his possession of her to have been tortious and illegal ? And here it is material to observe, that if a person is once liable as a trespasser for an illegal taking of the goods of another, he shall answer for their full value, unless they are restored to the owner; in which case She restoration may be given in evidence, in mitigation, but not in bar of the suit. I can see no reason, therefore, why the defendant, as well as Van Beuren, is not liable;, in this form of action, for his illegal and unjustifiable use and employment of the vessel, as a distinct and independent trespass.

That she was not in the possession of the plaintiffs when (he defendant took her, forms no objection to the established principles which I have before stated. In support and illustration of those principles, in addition to the cases already cited, I refer to Bird and others v. Clark, (3 Day's Rep. 277.) Williams v. Lewis, (Ib. 498.) Lotan v. Cross, ( 2 Camp. N. P. Cases, 464,) Chapman v. Thumblethorp, (Oro. Eliz. 329.) and note to Wilbraham T. Snow, (1 Siderfin, 438.)

If the principles upon which I have placed this cause are well founded, it follows that the judgment of the district court, and the certificate of probable cause, were both properly excluded.

With the order to pay the trifling sum which remained in that court, the plaintiffs have no concern. A recovery in this suit, if the vessel had not been sold, would have vested the title to her in the defendant; and as the money, in consequence of the sale, stands in the place of the vessel, the defendant probably would have a right to the proceeds.

The certificate, as I have before observed, protects the seizing officer from an action for the original taking only, and this protection is personal to him. It is no defence to this action, nor could even Van Beuren shelter himself under it, if the suit had been against him, he having, by his misconduct, put himself out of the provision of the act of congress. I acknowledge that this is a case not devoid of difficulty; yet, I think, the better opinion is, that trespass can be maintained against this defendant, and that, therefore, the verdict ought not to be disturbed.

Pi ass, J. was of'the same opinion.

New trial granted. 
      
       1 Chatty;s Pl. 173.
     