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U.S. Supreme Court

Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 18 How. 272 272 (1856)

Murray's Lessee v. Hoboken Land & Improvement Co.

59 U.S. (18 How.) 272


A distress warrant, issued by the Solicitor of the Treasury under the act of Congress passed on the 15th May, 1820 (3 Stats. at Large 592) is not inconsistent with the Constitution of the United States.

It was an exercise of executive, and not of judicial, power, according to the meaning of those words in the Constitution, and the privilege allowed to a collector to bring the question of his indebtedness before the courts of the United States, is merely the consent of Congress to the suit, which is given in other classes of cases also.

Neither is it inconsistent with that part of the Constitution which prohibits a citizen from being deprived of his liberty or property without due process of law. The historical and critical meaning of these words examined.

By the common law of England and the laws of many of the colonies before the Revolution, and of States before the formation of the federal Constitution, a summary process existed for the recovery of the debts due to the Government.

It does not necessarily follow that the adjustment of these balances is a controversy to which the United States is a party within the meaning of the Constitution.

Under the power of Congress to collect taxes and the exercise of that power by the act above mentioned, the warrant of distress is conclusive evidence of the facts recited in it and of the authority to make the levy, so far as to justify the marshal in making it; but the question of indebtedness may be the subject of a suit, Congress having assented thereto, and the levy may provide security for the event of the suit.

The article of the Constitution requiring an oath or affirmation for a warrant has no application to proceedings for the recovery of debts where no search warrant is used.

The article of the Constitution, requiring an oath or affirmation for a warrant, has no application to proceedings for the recovery of debts, where no search warrant is used.

The return of the marshal that he had levied on lands by virtue of such a warrant is at least prima facie evidence that the levy was not irregular by reason of the existence of goods and chattels of the Collector subject to his process.

These three cases came up from the Circuit Court of the United States for the District of New Jersey upon a certificate of division in opinion between the judges thereof.

As the opinion of the Court answers only the third question, it may be proper to say that the first two related to a mortgage executed by Henry Ogden, as the attorney in fact of Swartwout, to Henry D. Gilpin, Solicitor of the Treasury. It was necessary to the case of the plaintiffs to get rid of this mortgage in the first instance, and afterwards to avoid the sale under the distress warrant. If they failed in the last, the points raised in the first two questions became of no practical consequence, and therefore answers to them were not returned by this Court.

The case is stated in the opinion of the Court. The decision of one involved the two others, as they depended upon the same principles. chanroblesvirtualawlibrary

Page 59 U. S. 274

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