JOHN CONARD, MARSHAL OF THE EASTERN DISTRICT OF PENNSYLVANIA-THE UNITED STATES, PLAINTIFFS IN ERROR

v.

THE PACIFIC INSURANCE COMPANY OF NEW YORK, DEFENDANTS

• Mr Justice Story delivered the opinion of the Court.

This case, upon all the leading points, presents the same factSjiarid .circumstances which were before this court in the cases of Conard v. The Atlantic Insurance Company, 1 Peters’s Sup. Rep. 386, and Conard v. Nicoll, 4 Peters’s Sup. Rep. 291. Those cases underwent the most deliberate consideration of the court, and we are entirely satisfied with the doctrines maintained in them. The present case has been submitted without argument, and contains, at large, the charge of the learned judge who presided at the trial; a practice which this court has often disapproved, and deems incorrect, and for the continuation of which, nothing but the peculiar circumstances of the present class of cases could furnish any just apology.

The only pqints to which it is now necessary to ádvert, are those which are not embraced in the former cases, reported, in the first and fourth volumes of Peters’s Reports.

At the trial the plaintiffs offered to prove a demand of the collector, and a refusal by him after the levy was made to permit an entry and delivery of the goods at the custom house; but the counsel for the. defendant objected to such proof, and the objection was overruled by the court, and the evidence given. And we are of opinion that this evidence was properly admitted. The ground of this objection must have been that the plaintiffs were not the legal owners and consignees of the goods, and so were not entitled to make an entry of them at the custom house, and to have a delivery of them after such entry. But to this the proper answer is given by the learned judge in his charge, in conformity to the prior decisions of this court. The plaintiffs were both owners and consignees. The consignment of the homeward cargo was to order; and the plaintiffs, in virtue of the assignment, and the indorsément and possession of the bills of lading and the other transactions stated in the case, became consignees as well as owners of the homeward cargo; and as such were already entitled to enter , the same, and to have delivery thereof upon giving bonds in conformity with the provisions of the duty collection act of 1799, ch. 128. The thirty-sixth and sixty-second sections of that act clearly confer the right; and the proviso of the sixty-second section in nowise restrains it in cases like the present.

Another point, which appears to have been pressed by the counsel for the defendant at the trial, is that the United States had a lien upon, and a possession of the goods constituting the homeward cargo, at .the time of-their importation for the amount of duties accruing thereon, and that the plaintiffs, not having an actualbr constructive possession, could not maintain the present action and Harris v. Dennie, 3 Peters’s Sup. Rep. 292, was relied on in support of this objection to the recovery: but that case has no bearing on the point. It decided no more,, than that no creditor could, by any attachment or process, take the goods upon their importation out of the possession of the United States, until the lien of.the.United States for the duties accruing thereon vpas actually discharged, either' by payment of the duties, or by giving security therefor, according to the requirements of law on the part of the importer. There is no doubt that if the importer has the general right and property in the goods, that right draws after it a constructive possession, and the master of the ship is but a bailee, maintaining that possession for his benefit. And there is no pretence to say that the property of the importer in the goods is divested by any possession subsequently taken by the United States after the arrival of the goods, for the purpose of maintaining their lien for duties. That'possession is not adverse to the tfde of the importer; and indeed it may be properly deemed not so much an exclusive as a concurrent and mixed possession, for the joint benefit of the importer and of the United States. . It leaves the importer’s right to the immediate possession perfect, the moment the lien for the duties is discharged; and if he tenders the duties, or the proper security therefor, and the collector or other officer refuses the delivery of the goods, it is a tortious conversion of the property, for which an action of trespass or trover will lie. But this-case does not even present that peculiarity; for the seizure of the goods was not under any authority tó take possession in order to secure the duties, but it was made by the defendant, as marshal, to satisfy an execution against Edward Thomson, who had at the time no property or interest in the goods. The act was, therefore, the common case of an unlawful seizure and .levy of one man’s property to satisfy an execution against another man; and in such a case, trespass is clearly a fit and appropriate remedy.

Another point was, that the agreement of the 9th of October 1826 stated in the case, connected with the facts in evidence, amounted to a release or waiver by the plaintiffs, of all demand for damages arising from the acts of the officers of the United States in taking possession of and detaining the goods in question. Upon this point it is unnecessary to say.more than that the agreement • itself repels any such notion of a release or waiver; and it was expressly overruled in Conard v. Nicoll, 4 Peters’s Rep. 292.

.Another point was ás tó tíre rule of damages; and here the learned judge in. his charge seems to have laid down the-very rulé contended for by the defendant’s counsel. The case not being one which called for vindictive .or exémplary damages, ' he charged the jury (in conformity to the decision in Conard v. Nicoll), that the plaintiffs were entitled to recover such damages only, as they had proved themselves entitled to on account of the actual injury sustained by the seizure and detention of the goods: and in ascertaining what those damages were, he directed them that the plaintiffs had a right to recover the value of the goods (feas) at the time of the levy, with .interest from the expiration of the usual credit on extensive sales. And, in the close of the charge, he farther directed them to deduct therefrom the net amount of the sales of the Bas (they had been sold under the arrangements stipulated in the agreement of the 9th of October 1826), after payment of duties and charges, of sale, and that thé balance would be the amount to which the plaintiff would be entitled. In what manner the jury actually applied these directions in-forming their verdict -does not appear; and there is no reason to suppose that they have not been applied as favourably as the circumstances of the ease justified.

Upon the whole, upon a careful review of the charge, and of the points upon which the counsel of the defendant requested the direction of the court to the jury, we can perceive no error in point of law applicable to the.present case, which calls for the interposition of the corrective power of this court.

The>judgment of the circuit court is therefore affirmed, together with interest upon the amount, at .the rate of six per centum as additional damages and costs.