Circuit Court of Appeals, Second Circuit.
*836 Emory R. Buckner, U. S. Atty., of New York City (Francis A. McGurk, Asst. U. S. Atty., of New York City, of counsel), for plaintiff in error.
Sanford H. Cohen, of New York City, for claimant and defendant in error.
Before HOUGH, MANTON, and HAND, Circuit Judges.
HOUGH, Circuit Judge (after stating the facts as above).
Whether these prohibition matters are properly treated like revenue seizures, or whether cases like this, called by the amazing name of "common-law libels in rem," are forbidden (United States v. Franzione, 286 F. 769, 52 Ohio App. D. C. 307) by the statute, are questions suggested but not raised by this record.
If the facts shown without contradiction on the motion herein had been proved at a trial, the libel would have been dismissed as of course; so the only real questions raised by this writ are these: (1) Can such a motion as this be made? or (2) Did the United States by issuing process under the libel gain some new rights in the res greater than those obtained by seizure under the search warrant?
We do not propose to inquire into the nature or origin of suits of this kind; they have existed longer than the government of the United States, and to attempt to assign them to any special category of law or admiralty is unnecessary and unprofitable. It is enough to hold as we do, that, either at law or in admiralty, the validity of an attachment or propriety of a seizure in rem can always be raised by a motion to vacate. The practice is elementary. Therefore it was proper to move to vacate this seizure. Ordinarily a sheriff or United States marshal does not require to be specially told to whom he shall restore possession of what he improperly seized, but, as the marshal had received the goods from the prohibition agents, it was well to tell him where they should go, for the authority of the agents to have the goods at all had been destroyed by the vacation of search warrant by the United States commissioner. By directing *837 return to Bindell, departmental red tape was probably avoided.
As to the second inquiry stated above, we hold that the United States as libelant had or could assert no other or greater title to or right in the liquor, etc., than that obtained by seizure under the Volstead Act. As libelant it stood in the shoes of the seizing prohibition agents; therefore it had no greater rights under the libel than under the search warrant, and, when the latter fell, the right to hold the res also fell.
It follows that the order complained of was right in directing return of liquor, and that was the only part thereof which was final. The motion for judgment was granted, but, so far as this record shows, no judgment or decree was ever entered. We have considered the order for return of goods as final, and treated it accordingly. Cavalliotis v. La Fonciere (C. C. A.) 272 F. 803.
Order affirmed.
