97 U.S. 642 (1878), Stacey v. Emery

Citation:97 U.S. 642, 24 L.Ed. 1035
Party Name:STACEY v. EMERY.
Case Date:November 11, 1878
Court:United States Supreme Court
 
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Page 642

97 U.S. 642 (1878)

24 L.Ed. 1035

STACEY

v.

EMERY.

United States Supreme Court.

November 11, 1878

OPINION

ERROR to the Circuit Court of the United States for the Middle District of Tennessee.

The facts are stated in the opinion of the court.

Page 643

COUNSEL

Mr. Robert McPhail Smith for the plaintiff in error.

Mr. Assistant-Attorney-General Smith, contra.

MR. JUSTICE HUNT delivered the opinion of the court.

Emery, a supervisor of internal revenue, was sued by Stacey for causing the seizure of a quantity of whiskey belonging to him, which had been libelled by the collector of internal revenue, under Emery's direction, and subsequently released, on dismissing the proceedings against it.

That judgment and the accompanying order are in the words following: 'It is, therefore, considered by the court that the information in this cause be dismissed, and that the delivery bond given by the claimant for the property seized in this cause be discharged. It is further ordered by the court that the cost be certified to the proper accounting officers for payment, and that a certificate of probable cause of seizure be issued to W. D. Peabody, collector, it appearing that the seizure, although improperly made, was made by his superior officer, the supervisor.'

Emery justified as supervisor, and upon demurrer to his pleas setting up the certificate of probable cause as above set forth, judgment was given in his favor.

Stacey then sued out this writ of error, which is based on the ground that the certificate is no protection to Emery.

It is contended that the certificate protects the collector, on the sole ground that he acted as a ministerial officer, in obedience to the orders of his superior, and that the granting of the certificate in this form implies that the seizure was made without probable cause. These facts, it is said, determine conclusively that the seizure was wrongfully made, and that the defendant was a trespasser in making it. Gelston et al. v. Hoyt, 3 Wheat. 246; The Apollon, 9 Wheat. 362.

The defendant must and does base his exemption from liability for an unauthorized seizure of the plaintiff's goods upon the act of March 2, 1799 (1 Stat. 696, sect. 89), which provides as follows: 'When any prosecution shall be commenced on account of the seizure of any ship or vessel, goods, wares, or...

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