The opinion of the court was delivered by
Williams, Ch. J.This was an action of trespass against the defendant, for seizing, taking, and conveying away, a certain sloop called the Gen. McComb, and, also, certain arms and munitions of war. To the declaration the defendant plead the general issue, and a plea in bar, and the plea in bar is traversed. On the trial by the jury, a verdict passed for the plaintiff, and the defendant moved for a judgment, veridicto non obstante, which was overruled by the court. The defendant endeavored to justfy the seizing and detaining the vessel, &c.-, under an act of Congress, passed in 1838, commonly called the neutrality act, which provided for the seizing of vessels and arms, prepared for expeditions against conterminous territory of foreign nations, with whom the United States were at peace.
On the subject of the taking, the defendant’s counsel requested the court to instruct the jury, that the act *168of boarding the sloop, for the purpose of ascertaining the character of the loading, was not a taking of the vesse^’ ^or w^'c^ action °f trespass would lie. To this the court assented, and charged the jury accordingly. They further requested the court to charge, that if the manner of boarding, &c., did amount to a taking of the vessel, yet the defendant was not responsible, unless he united or participated in the order of Crook or Dimmick, for such taking. The charge of the court was, in substance, that if the defendant knew of the intention of taking the vessel, and voluntarily assisted with his boat, he was, in contemplation of law, a party and principal in the trespass. The charge was undoubtedly correct, in this particular, as it was evidently such an invasion of the property of the plaintiff, as would amount to a trespass, and for which, unless justified, the defendant was liable. Indeed", it may be questioned whether the court did not go too far, in acceding to the first request of the defendant, if there had been no other plea but the general issue.
The plea in bar sets forth, in-substance, that the defendant was a deputy collector ; that the sloop, Gen. McComb, arrived at Rouse’s Point, near the northern boundary of the United States, from some place to the south, and was then and there about to pass the frontier, for some place within the province of Lower Canada, having on board arms and munitions of war; and that, from the character of the vessel, and the arms and munitions of war on board, there was probable cause to believe, and the defendant did believe, they were intended to be employed in military operations in the province of Canada, &c., and for the reasons aforesaid, the defendant, as such deputy collector, did seize and detain the said sloop, and the said arms, &c. In the replication, the plaintiff denies that the sloop was about to pass the frontier of the United States, and issue is taken upon that fact only.
On the trial, the question arose as to what should be considered the frontier. The court decided that the frontier was the boundary line, between the United States and the province of Canada ; and unless the evidence satisfied the jury that the sloop was to be conveyed beyond the line, and into the province of Canada, the defendant had no authority, under the act before mentioned, to seize and detain the ves*169sel. We think the court were incorrect in both of these . • . . c decisions, as to the construction of the act ox Congress, bexore mentioned. The term frontier, embraces a tract of country of a greater or less width, bordering on, and contiguous to, the line ; and, though both the act of Congress, and the plea, speak of the vessel, as about to pass the frontier for a place within a foreign state or colony, yet, we do not consider it necessary, in order to justify the officers therein mentioned, in seizing and detaining a vessel, &c., that the vessel should actually be about to pass the boundary line. Indeed, such a construction would render the act wholly insufficient and inoperative. It cannot be that a vessel, with arms and munitions, might approach the extreme verge of the frontier, close to the line, where, as the evidence tends to prove, all the arms, ammunition and munitions of war, could be taken therefrom, and used with the consent of the owner, in forwarding, and carrying on, military operations within the territory of a foreign power, with whom the United States were at, peace, and no officer of the United States bejustified in interfering. We think the officers mentioned in the act of Congress, were authorized and justified by that act, in seizing and detaining any vessel, having on board arms or munitions of war, sailing in the frontier, and near to the boundary line, and in a direction to the foreign province, if they had probable cause to believe, and did believe, either from the character of the vessel, or the quantity of arms and munitions, on board, or other circumstances, that either the vessel or the munitions of war, were intended to be employed, either by the owner thereof, or any other person with his privity, in carrying on any military expedition or operations, within the territory of a foreign power. As the decision of the court made the justification of the defendant to depend wholly on the fact, whether the vessel was about to pass the boundary line of the United States, into the province of Canada, the decision was erroneous and, must be reversed.
It follow's from the opinion already expressed, that the plaintiff, in his replication, traversed an immaterial allegation in the defendant’s plea ; leaving the material part unanswered. The defendant now insists, that he is entitled to a judgment, notwithstanding the verdict. Such a judgment is never-rendered for a defendant. It is only rendered for a plaintiff, *170upon the confession in a plea, bad in substance. When a defendant passes over a replication, insufficient and immaterial in law, without demurrer, and an issue of fact has been joined on such immaterial replication, and found against him, the court, not knowing from the finding of the jury, for whom to give judgment, will either award a repleader, or arrest the judgment, on a proper motion therefor, as a useless trial might have been prevented if the plaintiff, instead of joining issue, had demurred to the traverse. No motion, either in arrest or for a repleader, has been made. But as the judgment of the county court is reversed, and the cause will have to be remanded there for trial of the general issue, the counsel can there make such application to alter or amend the pleadings as they may think the interest of their clients require.
The judgment of the county court is reversed.