United States v. Thomas Morris. America; for this, viz. that on a day prior to the day of seizure aforesaid, viz. on the first day of June, in the year aforesaid, at Liverpool, in Great Britain, the goods and merchandise aforesaid, the same being of the growth, produce, and manufacture of Great Britain, and articles, the importation of which into the said United States by the statutes thereof in such case made and provided then was prohibited, were put on board the vessel aforesaid, with intention of importing the same into the said United States, contrary to the true in-. tent and meaning of the statutes aforesaid: and afterwards, to wit, on the said fifth day of July, the same goods and merchandise were accordingly so imported in the vessel aforesaid into the said United States, contrary to the statutes in such case made and provided as aforesaid. And the said plaintiffs further say, that the attorney for the said United States, in and for the said District of Maine, afterwards, to wit, on the sixth day of July, in the year aforesaid, by the direction of the said Collector, commenced a suit in the District Court of the United States, in and for the said District of Maine, for the recovery of said forfeiture, by filing an information or libel in said Court against the said brig, her tackle, apparel, and furniture, together with said goods and merchandise; and said suit having been so commenced, the said Ogden, Smedes, and Butler, afterwards, viz. on the nineteenth day of July, in the year aforesaid, in consideration of the restoration of said goods and merchandise to Andrew Ogden, the claimant thereof, did execute and deliver to the said United States their certain bond or writing, obligatory in the penal sum of forty thousand dollars, with condition, that if judgment should pass against the said claimant as to the whole of said goods and merchandise or any part thereof, and the said claimant should within twenty days thereafter pay into Court, or to the proper officer thereof, the sum of 22,361 dollars and 75 cents, the appraised value of the said goods and merchandise, or such United States v. Thomas Morris. part thereof as should be decreed by law forfeited, with costs of prosecution, then the said bond or writing obligatory to be void and of no effect, but otherwise to remain in full force, power, and virtue. And the said plaintiffs further say, that afterwards, viz. on the twenty-seventh day of May, in the year 1817, it was considered and decreed by the said District Court of the United States, in and for the said District of Maine, that the said brig Hollon, her tackle, apparel, and furniture, and the goods and merchandise aforesaid were by law forfeited; and that the said appraised value thereof, viz. the sum of 22,361 dollars and 75 cents should be paid into the said Court, or to the proper officer thereof, in twenty days from the date of said decree, together with the costs of prosecution, taxed at 148 dollars and 92 cents. And the said plaintiffs further say, that more than twenty days afterwards, viz. at the September term of said Court next following, the said claimants, Andrew Ogden and others, having failed to comply with the terms of the said decree, it was considered, adjudged, and decreed by the said Court, that the said United States should recover against the said Ogden, Smedes, and Butler, the sum of 22,361 dollars and 75 cents debt or damage, and costs of suit taxed at 148 dollars and 92 cents, and that execution should issue accordingly. And the said plaintiffs aver, that the said last mentioned judgment, so recovered as aforesaid, is one and the same judgment with the judgment mentioned in the counts of the said plaintiffs' declaration in this suit, and no other. And the said plaintiffs also aver, that at the times of said seizure, forfeiture, and condemnation, and at the time of the rendition of said judgment, there was no Naval Officer of the United States in and for the district of Portland and Falmouth aforesaid, and that such forfeiture was not recovered in pursuance or in consequence of information given to said Collector, by any person other than the said Surveyor of the said district of Portland and Falmouth. And the said plaintiffs in fact say, that the said United States v. Thomas Morris. Ilsley and Jewett, Collector and Surveyor of the said districtof Portland and Falmouth as aforesaid, were entitled, by the statute in such case made and provided, after deducting all proper costs and charges, to one moiety of the forfeiture so decreed and recovered as aforesaid, to be divided between them in equal proportions, to wit, to the sum of 11,180 dollars 87 cents. And the said plaintiffs aver, that the writs of execution in the several counts of the said declaration mentioned, were sued and prosecuted out of the said District Court, in and for the said District of Maine, solely for the purpose of obtaining and satisfying the said moiety of said forfeiture, to which the said Ilsley and Jewett were entitled as aforesaid; of which the said defendant had notice, to wit, &c. and that at the time of the delivery to the said defendant of the said writs of execution, in the several counts of the said declaration first respectively mentioned, two memorandums in writing were endorsed thereon, the one signed by William P. Preble, Esquire, the Attorney of the said United States in and for the said District of Maine, notifying the said defendant that the said execution was for the benefit of the said Collector and Surveyor of the said district of Portland and Falmouth, and directing the said defendant forthwith to collect the same by their order; the other signed by the said Ilsley and Jewett, as Collector and Surveyor, requiring the said defendant forthwith to collect the said execution, and deposite the money agreeably to the precept thereof; and notifying the said defendant that the property in said execution was in them, the said Ilsley and Jewett, and requiring the said defendant to receive orders from them, the said Ilsley and Jewett, and from no other persons whatsoever in whatever related to the said execution. And the said plaintiffs in fact further say, that this suit was commenced in the name of them the said plaintiffs, for and on behalf of the said Ilsley and Jewett, and for the purpose of enabling the said Ilsley and Jewett to recover United States v. Thomas Morris. their damages for the injury they have sustained, by reason of the misfeasances of the said defendant in the said declaration mentioned, and not for the benefit, use, or behoof of the said plaintiffs, viz. &c.: ̧ and this the said plaintiffs are ready to verify. Wherefore they pray judgment and their damages by them sustained, by reason of the said misfeasances of the said defendant, to be adjudged to them, &c. The defendant demurred generally to the replication, and also assigned the following special causes of demurrer :— And the said Thomas Morris, marshal as aforesaid, according to the form of the act in such case made and provided, states, and shows to the Court now here, the following causes of demurrer in law to the said replication, that is to say,-for that the said replication is a departure from the said first count of the said declaration, in this, that the said first count proceeds upon a cause of action in favour of the United States of America; whereas the said replication proceeds upon a cause of action in favour of the said Ilsley and Jewett, in the said replication respectively named. And for that the said replication discloses no authority for the said Ilsley and Jewett to prosecute the said action against the said Thomas Morris, marshal, as aforesaid, in the name of the said The United States of America; and for that the said replication discloses no lawful and sufficient authority for the said Ilsley and Jewett to prosecute the said action against the said Thomas Morris, marshal, as aforesaid, in the name of the said The United States of America. And for that the said suit is prosecuted in the name of the said The United States of America, by an attorney on record, other than, and different from the Attorney of the United States of America, for the Southern District of New-York, who is appointed by law to prosecute all suits and proceedings in this Court, for and on behalf of the said The United States v. Thomas Morris. United States of America; and for that the said replication is in other respects uncertain, informal, and insufficient, &c. The pleadings concluded with a joinder in demurrer. T. A. EMMET and J. WELLS, in support of the demurrer, contended 1. That the replication was no answer to the plea, because the remission of the Secretary of the Treasury devested as well the rights of the custom-house officers as those of the United States. The words of the act give the Secretary power to remit the whole penalty, without making any distinction between. the interest of the United States and of the officers. It is a new power created by this statute, and is not to be governed by analogies, but by the plain words and meaning of the act itself. These are, that the Secretary may remit the whole penalty, without fixing any period at which his power shall cease. It is true that the act authorizes him to direct any prosecution that may have been commenced for the penalty to be discontinued; and perhaps it may be gathered from this clause, to what time the legislature meant to limit the exercise of his power of remission. But the inference which is made from the word prosecution by the plaintiff's counsel is incorrect. The prosecution is not at an end until the money is collected on the execution and paid into Court, and perhaps not until it has been paid over to the party. Until then he has no possession or enjoyment of his right, but is seeking it by the aid of the law, and this is a prosecution of it. In this case, however, no execution had been issued at the date of the first warrant of remission, and at the date of the second a levy only had been made, and the goods remained in the hands of the defendant. The analogy of the King's and President's pardoning power does not apply. It is admitted, that were this a case of pardon, a judgment would have placed the rights of the officers |