The point taken by the counsel for the de-fence is, that there was no seizure of the vessel before the filing of the libel. The objection is founded on the statute 24th September, 1789, and the decisión of the supreme court of the United States in The Ann, 9 Cranch [13 U. S.) 289.
The decision, in that case, did not depend upon the construction of the particular statute under which the property then became forfeited, but upon the construction of the act 24th September, 1789 (the “Judiciary Act”), which is equally applicable to the present proceeding. And, therefore, the rule laid down by the supreme court in that case, ■“that before judicial cognizance can attach upon a forfeiture, in rem, there must be a seizure,” must govern the present case. The citation made by the district attorney, of The Bolina [supra], does not support the doctrine contended for, namely, that the allegation of seizure need not be proved. The objection there taken was, that the seizure was made by a verbal and not a written authority; and Judge Story, in his opinion, says that in England, under St. 9 Geo. II. c. 35, the allegation of seizure contained in the information is held sufficient proof thereof. But he nowhere says that a seizure is not necessary at common law, nor that it need not be proved in an information brought under any statute of the United States. The argument, on behalf of the government, that the facts of the case show a sufficient seizure, cannot prevail. The evidence proves various communications between the collect- or of the port of Barnstable, the secretary of the treasury, and the district attorney; and the argument is, that these communications, and the filing of this libel by the district attorney, in conformity with the instructions of the collector, in connection with the fact that the vessel was, at the time, in the collection district of Barnstable, and that this was known to the collector, constitute a sufficient seizure. But the collector did not take possession of the vessel, nor even give notice of any kind to any party in interest. And no cases give color to the theory, that where the vessel, at the time of filing the libel, is within the district, there need be no seizure. The supreme court •of the United States say, that “it is a wise provision of law that requires the vessel to be seized;” that “the seizure gives jurisdiction to the court.” And the court, before issuing a warrant to arrest the vessel, will see that the libel alleges a seizure. Some actual taking is necessary to give this court jurisdiction. Here there was no previous taking.
It is further argued, that this objection comes too late, that it was waived by the filing of the plea. But this is a question of the existence of those facts, which will warrant the court in proceeding to decree a forfeiture. See The Abby [Case No. 14].
In requiring a seizure, by the collector, pri- or to the filing of the libel on the part of the government, the legislature has made that fact a pre-requisite to a condemnation. And the plea in this case is like the plea of not guilty to an indictment, and puts in issue all the material allegations of the information. And if, upon the trial, it does not appear that there was a seizure previously to the filing of the libel, the information is not sustained, and a forfeiture will not be decreed.
A suggestion was made, on the part of the district attorney, that, if the allegation of seizure was immaterial, he might be permitted to amend his libel by omitting that allegation. But the information would be defective, if this allegation were omitted. Libel dismissed.