the remedy of a person whose property is wrongfully taken by the marshal in officially executing his writ is not limited to an action against him personally. His official bond is not made to the person in whose behalf the writ is issued, nor to any other individual, but to the government, for the indemnity of all persons injured by the official misconduct of himself or his deputies; and his bond may be put in suit by and for the benefit of any such person. When a marshal, upon a writ of attachment on mesne process, takes property of a person not named in the writ, the property is in his official custody, and under the control of the court whose officer he is, and whose writ he is executing; and, according to the decisions of this court, the rightful owner cannot maintain an action of replevin against him, nor recover the property specifically in any way, except in the court from which the writ issued. Free man v. Howe, 24 How. 450; Krippendorf v. Hyde, 110 U. S. 276; S. C. 4 SUP. CT. REP. 27. The principle upon which those decisions are founded is, as declared by Mr. Justice MILLER in Buck v. Colbath, supra, “that whenever property has been seized by an officer of the court, by virtue of its process, the property is to be considered as in the custody of the court, and under its control, for the time being, and that no other court has a right to interfere with that possession, unless it be some court which may have a direct supervisory control over the court whose process has first taken possession, or some superior jurisdiction in the premises." 3 Wall. 341. Because the 'w had been so settled by this court, the plaintiff in this case failed to maintain replevin in the courts of the state of Nevada against the marshal, for the v taking which is the ground of the present action. Feusier v. Lammon, Nev. 209.

For these reasons, the court is of opinion that the taking of goods, upon a writ of attachment, into the custody of the marshal, as the officer of the court that issues the writ, is, whether the goods are the property of the defendant in the writ or of any other person, an official act, and therefore, if wrongful, a breach of the bond given by the marshal for the faithful performance of the duties of his office.

Upon the analogous question whether the sureties upon the official bond of a sheriff, a coroner, or a constable are responsible for his taking upon a writ, directing him to take the property of one person, the property of another, there has been some difference of opinion in the courts of the several states. The view that the sureties are not liable in such a case has been maintained by decisions of the supreme courts of New York, New Jersey, North Carolina, and Wisconsin, and, perhaps, receives some support from decisions in Alabama, Mississippi, and Indiana. Ex parte Reed, 4 Hill, 572; People v. Schuyler, 5 Barb. 166; State v. Conover, 4 Dutch. 224; State v. Long, 8 Ired. Law, 415; State v. Brown, 11 Ired. Law, 141; Gerber v. Ackley, 32 Wis. 233, and 37 Wis. 43; Governor v. Hancock, 2 Ala. 728; McElhaney v. Gilleland, 30 Ala. 183; Brown v. Mosely, 11 Smedes & M. 354; Jenkins v. Lemonds, 29 Ind. 294; Carey v. State, 34 Ind. 105. But in People v. Schuyler, 4 N. Y. 173, the judgment in 5 Barb. 166, was reversed, and the case of Ex parte Reed, 4 Hill, 572, overruled by a majority of the New York court of appeals, with the concurrence of Chief Justice BRONSON, who had taken part in deciding Reed's Case. The final decision in People v. Schuyler has been since treated by the court of appeals as settling the law upon this point. Mayor, etc., of New York v. Sibberns, 3 Abb. App. 266, and 7 Daly, 436; Cumming v. Brown, 43 N. Y. 514; People v. Lucas, 93 N. Y. 585. And the liability of the sureties in such cases has been affirmed by a great preponderance of authority, including decisions in the highest courts of Pennsylvania, Maine, Massachusetts, Ohio, Virginia, Kentucky, Missouri, Iowa, Nebraska, Texas, and California, and in the supreme court of the District of Columbia. Carmack v. Com. 5 Bin. 184; Brunott v. McKee, 6 Watts & S. 513; Archer v. Noble, 3 Greenl. 418; Harris v. Hanson, 2 Fairf. 241; Greenfield v. Wilson, 13 Gray, 384;

Tracy v. Goodwin, 5Allen, 409; State v. Jennings, 4 Ohio St. 418; Sangster v. Com. 17 Grat. 124; Com. v. Stockton, 5 T. B. Mon. 192; Jewell v. Mills, 8 Bush, 62; State v. Moore, 19 Mo. 369; State v. Fitzpatrick, 64 Mo. 185; Charles v. Haskins, 11 Iowa, 329; Turner v. Killian, 12 Neb. 580; Holliman v. Carroll, 27 Tex. 23; Van Pelt v. Littler, 14 Cal. 194; U. S. v. Hine, 3 MacArthur, 27.

In State v. Jennings, supra, Chief Justice THURMAN said: "The authorities seem to us quite conclusive that a seizure of the goods of A., under color of process against B., is official misconduct in the officer making the seizure, and is a breach of the condition of his official bond, where that is that he will faithfully perform the duties of his office. The reason for this is that the trespass is not the act of a mere individual, but is perpetrated colore officii. If an officer under color of fi. fa. seizes property of the debtor that is exempt from execution, no one, I imagine, would deny that he had thereby broken the condition of his bond. Why should the law be different if, under color of the same process, he take the goods of a third person? If the exemption of the goods from the execution in the one case makes their seizure official misconduct, why should it not have the like effect in the other? True, it may sometimes be more difficult to ascertain the ownership of the goods than to know whether a particular piece of property is exempt from execution, but this is not always the case, and if it were, it would not justify us in restricting to litigants the indemnity afforded by the official bond, thus leaving the rest of the community with no other indemnity against official misconduct than the responsibility of the officer might furnish. 4 Ohio St. 423.

So in Lowell v. Parker, 10 Metc. 309, 313, a constable, authorized by statute to serve only writs of attachment in which the damages were laid at no more than $70, took property upon a writ in which the damages were laid at a greater sum. In an action upon his official bond, it was argued for the sureties that they were no more answerable than if he had acted without any writ. But Chief Justice SHAW, in delivering the opinion of the supreme judicial court of Massachusetts, overruling the objection, and giving judgment for the plaintiff, said: "He was an officer, had authority to attach goods on mesne process on a suitable writ, professed to have such process, and thereupon took the plaintiff's goods; that is, the goods of Bean, for whose use and benefit this action is brought, and who, therefore, may be called the plaintiff. He therefore took the goods colore officii, and though he had no sufficient warrant for taking them, yet he is responsible to third persons, because such taking was a breach of his official duty."

Upon the weight of authority, therefore, as well as upon principle, the judgment of the circuit court in the case at bar is right, and must be af

firmed.

(111 U. S. 38)

UNITED STATES v. ULRICI and others.

(March 17, 1884.)

BONDED WHISKY-FORFEITURE-DISCHARGE OF BOND.

The seizure and sale of bonded spirits forfeited by the fraudulent acts of the distiller, and the payment of the taxes out of the proceeds, renders the bond functus officio, and discharges the obligors.

In Error to the Circuit Court of the United States for the Eastern District of Missouri.

This was an action at law, brought by the United States against Rudolph W. Ulrici, principal, and Gerhard Bensberg and Charles Hoppe, his sureties

on a distiller's ware ouse bond, which was payable to the United States, in the penalty of $47,000, and was dated May 5, 1875. The condition of the bond was that the principal should pay, or cause to be paid, the amount of taxes due and owing on certain described distilled spirits entered for deposit during the month of April, 1875, in distillery warehouse No. 4, in the city of St. Louis, before the removal of the spirits from the warehouse, and within one year from the date of the bond. The breach alleged was that the defendant Ulrici, principal upon the bond, did not before the removal of the spirits, and within one year from the date of the bond, pay, or cause to be paid, the taxes due and owing thereon, to the damage of the United States in the sum of $23,189.50. The answers of the principal and the sureties set up substantially the same defenses, only one of which it is necessary to state, which was as follows: After the spirits were deposited in the warehouse they were seized, on account of the fraudulent acts of said Ulrici as a distiller, for which, on June 4, 1875, an information was filed against them in the name of the United States in the circuit court for the Eastern district of Missouri, upon which a warrant of arrest issued to the marshal, who by virtue thereof took and held possession of the spirits, which, on January 28, 1876, were, pursuant to an order of the court, sold by the marshal to various persons for more than enough to pay all the taxes alleged by the United States to exist at the time against them, or that were imposed thereon by law; on the same day the marshal received the price of the spirits from the purchasers, and therewith, by authority of the United States, paid to the proper collector of internal revenue the taxes due and owing on the spirits, and the residue of the price he returned into court, and delivered the spirits to the respective purchasers thereof. The circuit court overruled a demurrer to this answer, and the plaintiff having taken issue thereon, the parties submitted the cause to the court, both upon the the facts and the law. The bill of exceptions shows that there was evidence tending to prove the truth of the answer. Thereupon "the court declared the law to be that on the pleadings and testimony the plaintiff was not entitled to recover, and found for the defendants, and rendered judgment for them." To reverse that judgment this writ of error was sued out. Sol. Gen. Phillips, for plaintiff in error.

No brief for defendants in error.

*WOODS, J. The assignment of error is that judgment was given for the defendants, whereas it should have been given for the plaintiff. We think* the judgment was right. It is clear, even upon a cursory reading, that the well-considered and minute provisions of the Revised Statutes found in chapter 4, entitled "Distilled Spirits," of title 35, entitled "Internal Revenue," were adopted with one purpose only, namely, to secure the payment of the tax imposed by law upon distilled spirits. All the regulations for the manufacture and storage, the marking, branding, numbering, and stamping with taxstamps of distilled spirits, and all the penalties, forfeitures, fines, and imprisonments prescribed by the chapter mentioned have that end only in view. If the tax on distilled spirits were repealed, all the ingenious and complicated provisions of the chapter would become useless and insensible. Among them is the requirement that when spirits are deposited in a distillery warehouse, the owner should give bond conditioned that he will pay the tax due thereon within one year, and before the spirits are removed. It is clear that the object of exacting this bond is to make sure the payment of the tax. It would seem, therefore, that if the tax is paid within the time limited, either by the distiller or out of the proceeds of the spirits subject to the tax, the object for which the bond was taken is accomplished, and it becomes functus officio, and the obligors are discharged.

The contention of the counsel for the government is that the forfeiture of the spirits on which a tax is due for the fraudulent acts of the distiller in seeking to evade its payment is a punishment for the offense, criminal or

quasi criminal, of the distiller, and that the application of the proceeds of the forfeited spirits to the payment of the tax cannot have the effect of relieving him from the obligation of his bond. Such, in our opinion, is not the true construction of the law regulating the imposition and collection of the tax on distilled spirits.

*Section 3458 of the Revised Statutes, tit. 35, provides that "when any whisky or tobacco or other article of manufacture or produce requiring brands, stamps, or marks of whatever kind to be placed thereon, shall be sold upon distraint, forfeiture, or other process provided by law, the same not having been branded, stamped, or marked as required by law, the officer selling the same shall, upon sale thereof, fix or cause to be affixed the brands, stamps, or marks so required, and deduct the expenses thereof from the proceeds of such sale." The bill of exceptions shows, and the circuit court found, that this was done in this case within the year following the execution of the bond. As directed by the statute, the marshal procured from the collector of internal revenue the stamps necessary to pay the tax on the spirits sold, and placed them on the packages in which the spirits were contained. The collector was authorized by law to deliver the stamps only to be used for the purpose of paying the taxes. Rev. St. §§ 3313, 3314. It is clear, therefore, that the affixing of the stamps to the packages by the marshal was intended by the law to be a payment of the tax, and was a payment. The bond on which the suit is brought, having been exacted for the sole purpose of secur ing the payment of his taxes, was therefore discharged.

We think the contention of the plaintiffs in error cannot be sustained for another reason. The tax on distilled spirits is made by the statute a first lien thereon. Rev. St. § 3251. As two of the defendants are sureties, they have the right to insist that, when the spirits are seized and sold by the United States for any reason whatever, the proceeds shall be first applied to the payment of the tax. It was said by this court, in the case of U. S. v. Boecker, 21 Wall. 652, that a person about to become a surety on the bond required from a distiller before commencing business "may examine and determine how far, in the event of liability on the part of the principal, the property where the business was to be carried on would be available as security for the government and indemnity for the surety." So we think the fact that the tax due the United States is made by law a first lien on the spirits deposited in the distillery warehouse may fairly be considered by the surety when he estimates the risk he takes by signing the distillery warehouse bond. There is an implied undertaking on the part of the United States, based on the statute making the tax a first lien, that the proceeds of the spirits shall be first applied to the payment of the tax, and this undertaking enters into the distiller's warehouse bond. The government, therefore, having forfeited the spirits for the misconduct of the distiller, cannot, consistently with the rights of the sureties, apply their proceeds on some other account, and collect the tax of them, for the contract of a surety is to be strictly construed. Leggett v. Humphreys, 21 How. 66; Miller v. Stewart, 9 Wheat. 680; U. S. v. Boyd. 15 Pet. 187; U. S. v. Boecker, 21 Wall., ubi supra. We think, therefore, that the proceeds of the sale of the spirits was, in fact and in law, applied to the payment of the tax due thereon, and that the bond of the defendants in the case given for its payment was discharged.

Judgment affirmed.

(111 U. S. 42)

UNITED STATES v. SUTTON and another.

(March, 17, 1884.)

In Error to the Circuit Court of the United States for the Western District of North Carolina.

Sol. Gen. Phillips, for the United States.

No brief for defendants in error.

WOODS, J. This case was argued at the same time with the foregoing case, and the same questions were presented by the record. As the judgment of the court below in that case was in favor of the defendants, it follows that it must be affirmed, and it is so ordered.

(111 U. S. 120)

GARRETSON v. CLARK and others.

(March 24, 1884.)

PATENTS-IMPROVEMENT ON EXISTING APPARATUS-DAMAGES FOR INFRINGEMENT. Damages cannot be recovered on account of the infringement of a patent for a mere improvement, unless the patentee distinguishes by his proofs the profits arising out of his improvement from those ascribable to the device improved upon.

Appeal from the Circuit Court of the United States for the Northern District of New York.

Jas. A. Allen, for appellant.

W. F. Cogswell, for appellee.

FIELD, J. In this case the court below sustained the plaintiff's patents, adjudged that the defendants were infringers, and directed a reference to a master, to ascertain and report the profits and gains made by the defendants. The master reported that no proof was presented to him that they had made any profit, or that the plaintiffs had suffered any damages. The court sustained the report, and the decree allowed the plaintiffs only nominal damages. From this decree the appeal is taken. Garretson v. Clark, 15 Blatchf. 70.

The patent was for an improvement in the construction of mop-heads, which may be described, with sufficient accuracy, as an improvement in the method of moving and securing in place the movable jam or clamp of a mop-head. With the exception of this mode of clamping, mop-heads like the plaintiff's had been in use time out of mind. Before the master, the plaintiff proved the cost of his mop-heads, and the price at which they were sold, and claimed the right to recover the difference as his damages. This rule was rejected; and, no other evidence of damages being offered, the master reported as stated. When a patent is for an improvement, and not for an entirely new machine or contrivance, the patentee must show in what particulars his improvement has added to the usefulness of the machine or contrivance. He must separate its results distinctly from those of the other parts, so that the benefits derived from it may be distinctly seen and appreciated. The rule on this head is aptly stated by Mr. Justice BLATCHFORD in the court below: "The patentee," he says, "must in every case give evidence tending to separate or apportion the defendant's profits and the patentee's damages between the patented feature and the unpatented features, and such evidence must be reliable and tangible, and not conjectural or speculative; or he must show, by equally reliable and satisfactory evidence, that the prof