Page:Dakota Territory Reports.djvu/18

Rh are averred in the libel, there is nothing showing that the court had jurisdiction. Conceding that the court had no jurisdiction by virtue of the seizure, it is contended by the plaintiff that the giving of the delivery bond conferred jurisdiction. The bond takes the place of the thing seized; if the seizure is valid the bond is good; all that is waived by giving the bond is any irregularity in the execution of the process, (2 Conklin's Admiralty Practice, 102; Brig Ann, 3 Curtis' U. S. Reports, 356.)

, J.—The original libel in this action was filed against the steamboat Cora, commanded by one W. R. Massly, then being upon and navigating the waters of the Missouri river, in this Territory, for introducing into the Indian country spirituous and intoxicating liquors.

At the October terra of said court, in 1860, on motion, the plaintiff had leave to amend the original libel, for reasons not herein important to state, which was accordingly done; and when the action finally came on to be heard, the defendant moved to dismiss it for want of jurisdiction in the district court, for the reason that the amended libel did not show a seizure of the boat before the libel was filed.

The original libel was filed on the 14th day of July, 1866, which does not set forth a seizure of the boat in any manner. The amended libel states "that on the 17th day of July, A. D. 1866," the "Marshal of the United States, for the said District of Dakota Territory, did seize the said steamboat Cora," etc.

The only question presented by the bill of exceptions is: Did the court below err in dismissing the action for want of jurisdiction in that court, because the complaint (libel) did not show a seizure of the boat by the proper authorities for a violation of the United States laws before the libel was filed?

I. It is necessary to maintain this action, that the libel should show a valid and existing seizure of the boat, and that that seizure was made by the " Superintendent of Indian Affairs, Indian Agent, or sub agent, or commanding officer of a military post." (13 Stat, at Large, 29.)