Conway v. Stannard
On certificate of division between the judges of the Circuit Court for the District of Vermont; the case being thus:
Before the act of July 18th, 1866,  was passed it was necessary, in all cases of seizure of property for violation of the revenue laws, to institute proceedings in court for its condemnation.
The statute referred to effected a change in the mode of proceeding where the property in question did not exceed in value $500, and provided a way in which the title of the owner could be divested without enforcing the forfeiture in court.
By the eleventh section the seizing officer was required, after having caused the property to be appraised, to give notice for three successive weeks, describing the property, stating the time, place, and cause of seizure, and requiring any person claiming it to appear and file his claim with the collector within twenty days from the first publication of such notice.
By the twelfth section, if a claimant appeared within the time prescribed, i. e., within twenty days from the first publication of this notice, filed his claim with the collector, and gave proper bond, the forfeiture had to be enforced in the proper court as in cases exceeding $500 in value. But if no claimant appeared within that time the officer was directed to advertise the property for sale, giving not less than fifteen days' notice of sale, and to deposit the proceeds of sale in the treasury. By the thirteenth section it was enacted that if it should happen that the owner, notwithstanding the publicity given to the transaction, did not know of the seizure and sale, and was not guilty of any intentional fraud on the revenue, the Secretary of the Treasury, on satisfactory proof of these facts, within three months from the deposit of the money, might remit the forfeiture and restore the proceeds of sale.
The fifteenth section of the act-the section on which the dispute in this case turned-requires the officer, if the property, being of less value than $500, shall be certified on oath by the appraisers, in their belief, to be liable to perish or deteriorate by keeping, or cannot be kept without disproportionate expense, 'and when no claim shall have been interposed therefor as hereinbefore provided,' to advertise that he had seized and would sell it, giving not less then one week's notice of such seizure and intended sale.
This act of 1866 being in force, Stannard, as an officer of the customs for the district of Vermont, on the 14th of January, 1868, seized the horses, harness, and sleigh of one Conway, as being engaged in smuggling goods from Canada. He caused the property to be appraised immediately, and the appraisers finding it worth $191, and no claim being interposed, and the appraisers certifying their belief on oath that it was liable to speedy deterioration by keeping, and that the expense of keeping it would largely reduce the net proceeds of the sale of it, the collector gave public notice on the 15th that he would sell it on the 29th following, and accordingly did sell it on the said 29th of January; that is to say, without allowing Conway twenty days from the notice of seizure within which to prefer his claim. The proceeds were paid into the treasury.
Hereupon Conway brought trespass de bonis asportatis, in the court below, for taking and carrying away the horses, &c.
The collector pleaded the facts as above given.
The plaintiff demurred to the plea, and the opinion of the judges being opposed upon the question whether the plea was a bar to the action, the question was certified for decision here.
Mr. L. P. Poland, for the plaintiff, and in support of the demurrer:
The substantial effect of a seizure and sale of property under the provisions of the act of 1866, is to deprive the owner of his property without any judicial determination against him, or against his property. He may, indeed, within three months, at his own cost and expense, appeal to the clemency or discretion of the Secretary of the Treasury, but all legal intendments and presumptions are against him; the burden of proof is thrown upon him, to show that his property was not forfeited, or that the violation of law was unintentional; and even this will not suffice, unless he also prove that he had no knowledge of the seizure.
The proceeding is far more in invitum than those usually so characterized,-tax sales, or sales on execution, and the like. The notice by publication is all the notice that the owner of the property is required to have before he is deprived of his property by an official and quasi judicial sale.
This mere statement of the statute, and of its severe penal consequences, is enough to show that every requirement of it should be strictly observed.
Now, by the fifteenth section, the owner is expressly given twenty days within which to file his claim and bond, and thus entitle himself to a legal trial before he is deprived of his property. The section enacts that if the appraisers certify that the property is perishable, or cannot be kept without disproportionate expense, 'AND WHERE NO CLAIM SHALL HAVE BEEN INTERPOSED THEREFOR, AS IS HEREINBEFORE PROVIDED,' then the officer may proceed to advertise and sell the property, and shall at such time as he thinks reasonable, BUT NOT LESS THAN ONE WEEK. These are absolute and indispensable conditions required by the law, before the seizing officer has any authority to even advertise the property for sale, and so absolutely essential are they for the protection of the owner that they cannot be disregarded.
In the present case the defendants utterly disregarded these provisions, and proceeded to advertise the property for sale on the next day after seizing it, without notice to the plaintiff and without opportunity to assert his claim. The case then is that of an officer who has neglected to perform an act legally required as preliminary to a sale. And for this violation of law-wanton and flagrant in this case-all the authorities, from the Six Carpenters' Case  to this time,  make the defendant a trespasser ab initio and liable in trespass for the property.
But under any circumstances the plea is no bar.
Mr. G. H. Williams, Attorney-General, and Mr. C. H. Hill, Assistant Attorney-General, contra.
Mr. Justice DAVIS delivered the opinion of the court.
^1 14 Stat. at Large, 180.
^2 1 Smith's Leading Cases, 274, 7th American edition, and notes; reported originally in 8 Reports, 432, 146*.
^3 Purrington v. Loring, 7 Massachusetts, 388; Pierce v. Benjamin, 14 Pickering, 356; Smith v. Gates, 21 Id. 55; McGough v. Wellington, 6 Allen, 505; Blake v. Johnson, 1 New Hampshire, 91; Barrett v. White et al., 3 Id. 210; Ferrin v. Symonds, 11 Id. 363; Cate v. Cate, 44 Id. 211; Sutton v. Beach, 2 Vermont, 42; Stoughton v. Mott, 13 Id. 175; Bond v. Wilder, 16 Id. 393; Lamb v. Day et al., 8 Id. 407; Briggs v. Gleason, 29 Id. 78; Hall v. Ray, 40 Id. 576.