Page:Dakota Territory Reports.djvu/59

 the U. S. army, (Yeckley subject to the orders of Bates) both on duty at Fort Seward, located near plaintiff's place of business. And that whatever they did was done in obedience to orders from the commanding officer of the department of Dakota, to enforce the provisions of the said Act of Congress, approved June 30, 1834.

2. That defendant Bates believing that all of said country was then Indian country, and that the plaintiffs had introduced spirituous liquors into said country, and there had the same in store with the stock of goods mentioned in the complaint, he ordered Yeckley with others to search said store, and in case they found spirituous liquors therein, to seize the said stock of goods. Yeckley with others searched the store, found liquors therein and seized the entire stock of goods.

3. That immediately thereafter Bates notified the U. S. Attorney for the Territory of Dakota, and such proceedings were thereupon had; that before the commencement of this suit the goods were taken by defendant Moore, Deputy U. S. Marshal, on a warrant of attachment, issued out of the United States District Court upon a libel of information in behalf of the United States and against said property, and afterwards and before the commencement of this suit, all of said goods and property were delivered to the plaintiffs, and by them received and accepted. And further, that the proceedings against said stock of goods were then still pending in said court.

On the trial the defendants asked the court to give to the jury the following instructions, which were refused and defendants excepted:

1. "If the jury find that defendants seized the goods in question, having probable cause to believe and believing that they had been forfeited to the United States by acts of the plaintiffs, and for the sole purpose of placing them in custody of a court having jurisdiction to declare and enforce such forfeiture, and that the goods were taken from the defendants by a U. S. Marshal upon a warrant issued by a court having such jurisdiction, commanding such Marshal to seize such