court in which condemnation shall be had, to the highest bidder, at public auction, by order of such court, and at such place as the court may appoint, giving at least fifteen days' notice (except in cases of perishable merchandise) in one or more of the public newspapers of the place where such sale shall be; or if no paper is published in such place, in one or more of the papers published in the nearest place thereto; for which advertising, a sum not exceeding five dollars shall be paid. And the amount of such sales, deducting all proper charges, shall be paid within ten days after such sale by the person selling the same to the clerk or other proper officer of the court directing such sale, to be by him, after deducting the charges allowed by the court, paid to the collector of the district in which such seizure or forfeiture has taken place, as herein before directed.

R. S. § 939, U. S. Comp. Stat. 1901, p. 691.

§ 1519. Bailing of property in vacation.

In any cause of admiralty and maritime jurisdiction, or other case of seizure, depending in any court of the United States, any judge of said court, in vacation, shall have the same authority to order any vessel, or cargo, or other property to be delivered to the claimants, upon bail or bond, or to be sold when necessary, as the said court has in term-time, and to appoint appraisers, and exercise every other incidental power necessary to the complete execution of the authority herein granted; and the recognizance of bail or bond, under such order, may be executed before the clerk upon the party's producing the certificate of the collector of the district, of the sufficiency of the security offered; and the same proceedings shall be had in case of said order of delivery or of sale as are had in like cases when ordered in term-time: Provided, That upon every such application, either for an order of delivery or of sale, the collector and the attorney of the district shall have reasonable notice in cases of the United States, and the party or counsel in all other cases. R. S. § 940, U. S. Comp. Stat. 1901, p. 691.

§ 1520. No costs for successful claimant, nor right of action, when reasonable cause of seizure.

When, in any prosecution commenced on account of the seizure of any vessel, goods, wares or merchandise, made by any collector or other officer, under any act of Congress authorizing such seizure,

judgment is rendered for the claimant, but it appears to the court that there was reasonable cause of seizure, the court shall cause a proper certificate thereof to be entered, and the claimant shall not, in such case, be entitled to costs, nor shall the person who made the seizure, nor the prosecutor, be liable to suit or judgment on account of such suit or prosecution:[a]-[b] Provided, That the vessel, goods, wares, or merchandise be, after judgment, forthwith returned to such claimant or his agent.[c]

R. S. § 970, U. S. Comp. Stat. 1901, p. 702.

[a] Scope of section.

The provisions of this section were intended to be confined to cases where the collector makes a seizure followed by a prosecution by the United States for a penalty or forfeiture arising from an illegal act of the persons in charge of the vessel, and they were not intended to be applied where the vessel was simply detained for nonpayment of duty. The section protects district attorneys, collectors of customs and supervisors of internal revenue.5

[b] Reasonable cause-certificate thereof.

If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that an offense had been committed it is sufficient, and the personal motives of the officer are immaterial.7 Reasonable cause is held to mean the same as probable cause.8 The fact that goods seized were not mentioned in the manifest furnishes reasonable grounds for seizure.9 The granting of the certificate of reasonable cause is not a final judgment, it being a collateral matter arising after final judgment.10 Hence refusal to grant such certificate is not appealable.11 The decree of acquittal, accompanied by a denial of the certificate of probable cause, conclusively establishes a tortious seizure and entitles the owner to damages. 12

[c] Return of property.

It is the duty of the claimant to move the court for the necessary orders to cause the return of the property. And the benefit to which the collector is entitled under the certificate of probable cause cannot be denied

4The Conqueror, 166 U. S. 124, 41 L. ed. 944, 17 Sup. Ct. Rep. 510. 5Stacey v. Emery, 97 U. S. 642, 24 L. ed. 1035.

7Stacey v. Emery, 97 U. S. 642, 21 L. ed. 1035.

8The City of Mexico, 25 Fed. 924. See Frerichs v. Coster, 22 Fed. 637, 23 Blatchf. 74.

9 United States v. A Lot of Silk Umbrellas, 12 Fed. 412.

10United States v. Abatoir Place, 106 U. S. 162, 27 L. ed. 128, 1 Sup. Ct. Rep. 169.

11United States v. Abatoir Place, 106 U. S. 162, 27 L. ed. 128, 1 Sup. Ct. Rep. 169: United States v. Frerichs, 124 U. S. 317, 31 L. ed. 472, 8 Sup. Ct. Rep. 515; The Elmira, 16 Fed. 139.

12 Averill v. Smith, 17 Wall. 93, 21 L. ed. 613.

on the ground that he did not return the property, it being in the possession of the court.15 While in possession of the court its officers are liable for negligent or dishonest acts whereby the property is injured or destroyed.16

§ 1521. Double costs on non-suit in action against seizing officer. If, in any suit against an officer or other person executing or aiding or assisting in the seizure of goods, under any act providing for or regulating the collection of duties on imports or tonnage, the plaintiff is nonsuited, or judgment passed against him, the defendant shall recover double costs.

R. S. § 971, U. S. Comp. Stat. 1901, p. 703.

The above section was originally enacted in 1799.19

15 Averill v. Smith, 17 Wall. 82, 21 L. ed. 613.

16 Burke v. Trevitt, 1 Mason, 96, Fed. Cas. No. 2,163.

19 Act July 2, 1799, c. 22, § 71, 1 Stat. 678.

CHAPTER 46.

PROVISIONS RESPECTING FOREIGN SEAMEN AND OFFENSES AGAINST NAVIGATION LAWS.

§ 1523. Arrest and return of seamen deserting from foreign vessels. § 1524. Power of foreign consuls over disputes between foreign seamen. -arrest on application of consul-examination.

§ 1525.

§ 1523. Arrest and return of seamen deserting from foreign ves

sels.

On application of a consul or vice-consul of any foreign government having a treaty with the United States stipulating for the restoration of seamen deserting, made in writing, stating that the person therein named has deserted from a vessel of any such government, while in any port of the United States, and on proof by the exhibition of the register of the vessel, ship's roll, or other offìcial document, that the person named belonged, at the time of desertion, to the crew of such vessel, it shall be the duty of any court, judge, commissioner of any circuit court, justice, or other magistrate, having competent power, to issue warrants to cause such person to be arrested for examination. If, on examination, the facts stated are found to be true, the person arrested not being a citizen of the United States, shall be delivered up to the consul or viceconsul, to be sent back to the dominions of any such government, or, on the request and at the expense of the consul or vice consul, shall be detained until the consul or vice-consul finds an opportunity to send him back to the dominions of any such government. No person so arrested shall be detained more than two months after his arrest; but at the end of that time shall be set at liberty, and shall not be again molested for the same cause. If any such de

serter shall be found to have committed any crime or offense, his surrender may be delayed until the tribunal before which the case shall be depending, or may be cognizable, shall have pronounced its sentence, and such sentence shall have been carried into effect. R. S. § 5280, U. S. Comp. Stat. 1901, p. 3508.

3

The above section was carried into the Revised Statutes from acts of 18291 and of 1855.2 It provides the only remedy in case of foreign seamen deserting. The section applies only to seamen belonging to a country with which United States has a treaty providing for the arrest and surrender of deserting seamen.4 It does not authorize the restoration of the seamen to the ship but merely permits their delivery to the consul.5

§ 1524. Power of foreign consuls over disputes between foreign

seamen.

Whenever it is stipulated by treaty or convention between the United States and any foreign nation that the consul general, consuls, vice-consuls, or consular or commercial agents of each nation, shall have exclusive jurisdiction of controversies, difficulties, or disorders arising at sea or in the waters or ports of the other nation, between the master or officers and any of the crew, or between any of the crew themselves, of any vessel belonging to the nation represented by such consular officer, such stipulations shall be executed and enforced within the jurisdiction of the United States as hereinafter declared. But before this section shall take effect as to the vessels of any particular nation having such treaty with the United States, the President shall be satisfied that similar provisions have been made for the execution of such treaty by the other contracting party, and shall issue his proclamation to that effect, declaring this section to be in force as to such nation.

R. S. § 4079, U. S. Comp. Stat. 1901, p. 2766.

The above section was originally enacted in 1864.6 It is a rule well settled that the judicial power of consuls depends on treaty stipulations.7 Unless restricted by treaty a United States district court may, in the

1 Act Mar. 2, 1859, c. 41, 4 Stat. 359. 2 Act Feb. 24, 1855, c. 123, 10 Stat. 614.

3 United States V. Minges, 5 Hughes, 494, 16 Fed. 657.

Tucker v. Alenxandroff, 183 U. S. 434, 449, 46 L. ed. 269, 22 Sup. Ct. Rep. 195. See also United States v. Kelly, 108 Fed. 540.

5 United States v. Kelly, 108 Fed. 540.

Fed. Proc.-81.

6 Act June 11, 1864, c. 116, § 1, 13 Stat. 121.

7 Daniese v. Hale, 91 U. S. 13; 23 L. ed. 190; United States v. Craig, 28 Fed. 801; In Re Aubrey, 26 Fed. 851; The Elwin Kreplin, 9 Blatchf. 438, Fed. Cas. No. 4,426; The William Harris, Ware, 373, Fed. Cas. No. 17,695.

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