*181The opinion of the court was delivered by
Royce, J.. The action is trespass for a sloop, seized by the defendant, as he alleges, under the act of Congress of March 10th, 1838, he being an officer of the United States,, authorized and required to execute the provisions of that statute. The ground of the motion is, that exclusive jurisdiction of the subject matter belongs to the courts of the United States. I shall pass over those objections to the motion, which are merely formal and technical, as also the. objection to the time of making it, on the ground,. that a motion to the court need not be drawn up with the precision of a special plea, as it is enough if the facts, forming the basis of the application, be alleged ; and because an objection to the jurisdiction, in reference to the subject matter, is never out of time.
In one allegation, however, the motion is evidently incorrect. It is not true that the courts of the United States have any original jurisdiction of this action, (being the common law action of trespass,) although they may have jurisdiction to pass upon the legality of the seizure and detention, The motion might, therefore, be sustained, if at all, upon the ground that the right to decide upon the validity of the seizure and detention, belongs, exclusively, to the United States courts, and that such right necessarily excludes any common law action between the parties, until the legality of the seizure and detention shall first be settled by the appropriate tribunal.
That there is a primary jurisdiction in the United States courts, to decide on these subjects, which is frequently exclusive, is evident, not only from authority, but from the purpose and object to be attained by the seizure and detention. This is always the case, where the seizure is made on the ground of forfeiture.
And it is insisted that the doctrine should be the same, where the object is not a forfeiture, but a temporary detention of the property, to carry into effect the design of the act of Congress. It is not material to distinguish between the cases, and it is, at present, admitted, that in all cases, where the property is to be acted upon specifically, whether for the one purpose or the other, the jurisdiction to decide *182uPon legality of the seizure does belong, exclusively, to the courts of the United States.
Whether this paramount jurisdiction shall operate to prevent the institution of an action at common law, founded upon the same seizure and detention, is a question not so clearly settled. If the action is of a character which necessarily goes to devest the possession, under the seizure, it cannot be sustained. Such was the case of Slocum v. Mayberry, (2 Wheat.) being replevin, which could not be instituted to effect, without retaking the property from the seizing officer. But if the action is an ordinary one, seeking merely to recover damages, there would seem to be nothing in principle to forbid the pendency of both suits at the same time. One is a proceeding in rem, the other in personam. They are commenced and prosecuted for different objects, which cannot be blended in either one of the suits.
However this point may finally be settled, there is another view which we think decisive of this case. The state courts have authority to judge of the apparent application of the United States law to the subject matter in controversy, as appears from the case of Slocum v. Mayberry, and Gelston v. Hoyt.
Here we must look into the statute, and see if this vessel was a description of property, liable, under any cirehmstan-ces, to be seized under it. Or, if seized at all, whether, by the obvious terms of the statute, it was liable to be detained, and how long ?
There is no doubt as to the liability of the vessel to be seized ; but, it is expressly enacted, that, unless the seizing officer shall, within ten days, procure a warrant from the district court, to justify the detention, the property shall be forthwith restored ; and all the subsequent provisions, as to the owner’s application for relief, must be understood as going on the supposition that this warrant has been procured by the officer.
The present motion is silent, as to any such authority for detaining the vessel, and nothing can be intended to oust the court of jurisdiction. It follows, that the detention became wrongful, after the ten days, though the seizure may have been right at first. Whether the remedy should be sought by trespass, or trover, is a question relating to the *183form of the action, but cannot affect the jurisdiction of state courts. the
The judgment of the county court is reversed, and motion to dismiss overruled.