Page:Dakota Territory Reports.djvu/19

4 The seizure should be made by some one of the above named officers in order to make it a legal seizure under the United States statute; and the libel should allege that the seizure was made by such an officer.

The original libel was clearly defective as it did not allege that there had been a seizure made by any person; therefore, the necessity of an amendment.

Now as to the amended libel: It shows and alleges a seizure made by the marshal of the territory, only, (and this was three days after the filing of the original complaint) and not by any one of the officers named in the act who are empowered with any authority to make such seizure.

This seizure of the marshal was after the commencement of the action, and he took it under and pursuant to a writ of the court based upon the original complaint. The seizure of the marshal under this writ is not a real and legal seizure of the boat by virtue of the act of congress before referred to. The jurisdiction of United States courts is limited, and these courts can only exercise snch powers as are prescribed by statute. (Conklins' Treatise, 355.)

There must have been a valid and existing seizure by one of the officers mentioned in the statute when the original complaint was filed, before the government can sustain this action. (Conklin's Treatise, 343, 349, 457; and cases there cited.)

II. It was claimed in argument, that as the defendant filed a bond to retake the property after it was seized, that he could not afterwards controvert the jurisdiction of the court in the premises; but, although this question is not properly before us in the record, we are of opinion that the giving of the bond does not waive any right in regard to the defense set up to the merits in the action, but would, perhaps, be & waiver to irregularities in the execution of the process. (2 Conklin's Admiralty Practice, 102; Brig Ann, 3 Curtis S. C. Reports, 356; and cases there cited.)

We see no error in the record. The judgment of the court below is, therefore,

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