BALTIMORE & O. R. CO. V. ·HAMILTON.
from tract No. 2,009 prior to June 19, 1879, the date of the marshal's sale. The jury may fairly assume that the 22,800 feet of boards delivered to the defendant on June 21,1879, was made from timber which had been removed from the tract prior to the marshal's sale. But how much, if any, of the lumber delivered after June 21st was made from timber removed from the tract prior to June 19, 1879, has not been shown as clearly as is desirable. I, however, leave you to determine, under all the evidence, how the fact is. , In assessing the plaintiff's damages you will ascertain from the what was the fair value of the lumber .at the railroad siding at Dubois at and immediately bofore the time it was put on the cars; and you will make no deduction or allowance for any expenses McLean and Baum were at in cutting the .timber, or sawing it, or in removing it to the railroad siding. I have already instructed you that the plaintiff's interest in the sawed lumber was the same as his interest in the timber itself out of which it was made, and in ascertaining its value no abatement is to be made on account of what McLean and BauID's labor and expenses may have added to its value. They were mere trespassers as against the plaintiff. and entitled to no such allowance, and in this respect the plaintiff is in no better position. Let me briefly recapitulate: The jury will ascertain-First, the whole quantity of lumber delivered to the defendant;.second,the de- . fendant's proportion or share thereof, in accordance with the instructions already given; third, the fair value of the lumber at the railroad siding at Dubois at the time it was put on the cars. Having determined these matters, the money value of the plaintiff's share will be of easy calculation. To that value so ascertained you may add (and it will be proper to add) interest to this date.
& O. R. CO. v. HAMILTON.
April 4, 1883.)
(Oircuit Court ;W. D.
PRACTICE-MoTION TO QUASH AT RULES.
When the case is at rules, the defendant, in his individual capacity, may make a motion to quash for matters patent in the suit.
SAME-WRIT OF REPLEVIN-U:!'llTED STATES CIRCUIT COURT.
As the laws of Virginia do not admit the .action of replevin, the writ of reissue frum this court. plevin
SAME-PROPERTY IN CUSTODIA LEGIS-PROPERTY SEiZED BY TAX COLI,RCTOR.
Property seized by a collector of taxes for the tax assessed on it is in custodia legis, as if taken under execution, and at common law replevin would not lie to take possession thereof.
At'Law. Motion to quash writ of replevin. F. S. Blair, Atty. Gen., and W. S. Lnrty, fOr the State. Bumgardner, Compton, Pendleton tt Bond, for plaintiff. HUGHES, J. This is an action brought by the Baltimore & Ohio Railroad Company, a corporation under the laws of Maryland, to recover the possession of certain cars and rolling stock claimed by it as the property of that corporation, which it is alleged is now in the possession of Hamilton, the defendant. The writ is a writ of replevin, issued by the'clerk of the circuit court of the United States for the western district of Virginia, at Harrisonburg, upon the filing of a bond to pay all damages in the usual way in replevin. A motion has been filed by John E. Hamilton, treasurer of Augusta county, in that district, to quash the writ upon its return to rules, which was upon the third of April, upon the ground that replevin does not lie in this state against a tax collector, as he was, nor indeed is it a mode of practice and proeeedinginVirginiaat all. Had this been filed in the individual capacity of the defendant we should have had less difficulty about it. There is nothing in the writ or proceedings to show that the defendant was. sued as collector, and nothing to show that the pr,operty' was taken for taxes. If that was a defense to the action the defend· ant must plead it, but could not assert it in a motion to quash; which must be granted for such causes only as are patent upon the face of the writ; and the motion to quash or the plea filed should have been in the name of defendant and not in his official capacity. But the case being at rules, the defendant has the right to make the motion to quash in his individual capacity for mn ,ra patent in the suit, and at this hearing he has so done. He allege!! that the suit ought to be quashed because the laws of the state of Virginia do not admit the action of replevin. In looking at this fact it appears that as early as Virginia abolished this old common-law form of action for all purposes except cases of distress for rent, and in 1849 abolished it altogether, and for all purposes. There is no vestige of a ca,se in replevin on the docket of this court, nor is there at Richmond, so far as inquiry can deter. mine. The law of the United States requires (section 914, Rev. St.) that the courts of the United States shall conform their forms and modes of proceeding to sucH as in like cases are the forms and modes
BALTIMORE & O. R. CO. V. HAMILTON.
of proceeding in the courts of record in the state where the United States court is sitting. Now, on a like case, that is, in a case where a person is complained of for taking possession of and holding the chattels of another wrongfully, the courts of Virginia are not permitted to give the writ of replevin to a plaintiff to remedy his wrpngj and as we must follow their form and mode of proceeding in such a case, we are not at liberty to issue that writ, but must follow the state's form and mode, whatever they may be. In Nudd v. Burrows, 91 U,. S. 426, ¥r. Justice SWAYNE declares the purpose of the act to be to. bring about uniformity in the law of procedure in the federal and stat13 courts of the same locality. While in the federal courts the common-law pleadings,' forms, and practice were adhered to, in the state courts of the same district the simpler forms of the localoode prevailed. ThG evil was a serious one. It was the aim of this provision to remove it. This was done by bringing about the conformity in the courts of the United' States which it prescribes. This is stated with. great clearness, and the bar ought not to be ungJ:ateful to the genilll justice who remembered his brethren in construing this statute in thatimportant case, for he says section is thatit saves them from the one of the happy effects of necessity of studying two distinct l!ystemsof remedial law, and of practicing according to the wholly dissimilar requirement of both. In this, we think, the kindness of the judge to his over-worked brethren led him aside. For the statute comes only to' 'relief of the lawyer, who never leaves the courts,federal and' domestic, of his own state. He that practices in the federal conrts generalI;y must study the different remedial laws of nearly 40 states and territories. But had we the right to issue the writ of replevin in Virginia, we are of opinion it would hate served the plaintiff to little purpose. We are not called upon to decide the point j but at common law it was never held that replevin would lie to take possession of property in custodia legis. Property seized by a collector of taxes for the tax assessed on it is in custodia legis, as if taken upon execution. ' The motion to quash is granted.
See .I.;x patte Baltimore &0 O. R. 00. 2 Sup:
'Ct. Rep. 876.
UNITED STATES V. CURTIS.
(District Court, 8. D. New Yark.
April 10, 1883.)
PENALTffiS AND FORFEITURES-INTENT-REV. ST.
As guilty knowledge or evil intent are not necessary mgredients lU statutory crimes or penalties, where the intention of the statute appears not to make them so, in an action against the master of a vessel, under section 2873, for unlading goods without a permit, the master's .want of knowledge or of participation in the unlawful acts is no defense.
SAME-DESIGN OF STATUTE-}IASTERS OF VESSELS.
The design of section 2873, 1il,e that of section 50 of the act of March 2, 1799, is to secure vigilance on the part of masters, or the persons havinll; charge of the vessel, in preventing illicit traffic, which by virtue of their command they are presumed to be able to prevent.
SAME-DEUELlCT OU SALVAGE GOODs-AcCIDENT.
Section 2873, imposing a penalty for unlading goods without a permit, is to be interpreted and applied according to its intention,-viz., to impose vigilance in preventing such unlading upon the persons having command,-and it is not to be applied in cascs evidently outside of the intention of the statute, such as derelict or salvaged goods, or goods unladen in case of accident to save them from loss, nor to cases of unlading by a superior attacking force; nor, in like manner, where it is affirmativ(lly. shown that it not by any practicable means be prevented by the or person in command. 4. SAME-SECTION 16, MOIETY FOR JURY. In an action for a penalty agl\in.st the master in such cases, section 16 of the moiety act (1 Supp. Rev. St. 80) requires only that the intent with which the acts were done by the persons who committed them should be submitted to the jury, not the intent of the master.
6. SECTIONS 2873 AND 2768, HOW CONSTRUED. Sections 2873 and 2768 are to be construed together as the equivalent of sec-
tion 50 of the act of March 2, 1799, and as-imposing only one penalty, viz., a penalty either upon the master, or, if he be not in command at the time, then upon the person who is in command of the vessel.
SAME-SUIT AGAINST ABSENT MASTER.
Where 77 packages of cigars Were secretly lowered for the purpose ot SlllUgglingfrom the bowso! the steamer S., at 2 o'clock A. M., while she lay at anchor at lower quarantine, New York harbor, while the master was absent from the ship, he having gone the day previous to the New York custom-house, 15 miles distant, to make entry of the arrival of the vessel, as he was bound to do by law, held, that, though the penalty of $400 was incurred, the suit should have been against the person in actual command of the vessel at the time, and not against the absent master, and that the latter was not liable.
Action to Recover Penalty. S. L. Woodford, Dist. Atty., and Wm. C. Wallace, Asst., for the United States. Goodrich, Deady « Platt, for defendant. BROWN, J. This action was brought under section 2873 of the Revised Statutes, to recover a penalty of $4-00 against the defendant,