United States v. Thomas Morris.

of the forfeiture. They enjoy the right, by the express words of the statute, of having that moiety compounded with that of the United States, to be pursued in their name, and with all their privileges and advantages, until it be finally collected and distributed. The United States were thus bound to commence this action in their own names; the officers had a right to have it so commenced; and they could not have brought one in their own names. The action was, therefore, rightly brought in the name of the United States, and the execution was properly issued into the District of New-York.

The cause of demurrer, that the replication is a departure from the declaration, because the latter proceeds on a cause of action, in favour of the United States, while the former proceeds on a cause of action in favour of the officers, is unfounded. The declaration discloses the true and complete cause and right of action, which is in the United States. The replication discloses no right of action in the officers. It merely states a right in them, wholly different from the right of action; to a moiety of the penalty when it shall be collected. The cause of action is the same in both pleadings. It was not necessary, and would have been improper to have stated this right in the declaration, when the cause of action there stated was sufficient without it. It could not then be anticipated that the present defence would necessarily have been pleaded, even if such defence had been known. It was time enough to reply to such defence when made; and this is the proper and only office of the replication. The plea stated new matter, and the replication contains new matter in avoidance. To maintain this point of the defendant's counsel, they must establish the extraordinary principle, that the declaration should be encumbered with all such facts as are known to the plaintiff, which would be an answer to any possible defence that may also be known to him.

The last special cause of demurrer, viz: that none but the

United States v. Thomas Morris.

but the District Attorney could bring the action, also depends on the main question. If the officers are entitled to their moiety, notwithstanding the remission, and to sue for it in the name of the United States, they ought not to be dependent on the pleasure of the District Attorney, if he chooses to prejudge the case and to refuse to bring an action. In such case they would be remediless. The Court must have power in a case of the kind, to authorize another attorney to sue. The appearance by attorney, may be properly and safely left to be controlled by the rules and orders of the Court. And this shows that this objection cannot be taken advantage of by special demurrer, but should have been made on motion in the early stages of the suit. But there is no law forbidding any attorney to commence a suit, especially such an one as this, in the name of the United States. The act referred to, only declares, that "there shall be a District Attorney, whose duty it shall be to prosecute all actions in which the United States are concerned." Here is no prohibition which can support this cause of demurrer. If the Court were satisfied, as they were by affidavit, that individuals had a reasonable right to have an action commenced in the name of the United States, they were right in appointing another attorney, on the refusal of the District Attorney.

LIVINGSTON, J. This is an action on the case for a misfeasance against the defendant as marshal of the Southern District of New-York.

The plaintiffs declare, that in September term, 1817, the District Court for the District of Maine rendered judgment in their favour against Andrew Ogden, Abraham K. Smedes, and Thomas C. Butler, for 22,361 dollars 75 cents debt or damages, and also for costs; which judgment in part, that is, for 11,180 dollars 37 cents remains unsatisfied. That on the

United States v. Thomas Morris.

11th September, 1818, the plaintiffs issued an execution out of said Court for this sum, directed to the marshal of either of the districts of the United States, which was delivered to the defendant, being then, and yet marshal of the Southern District of New-York, on which he returned that he had seized goods and chattels of the defendants therein named, to the value of the whole sum, which remained in his hands for want of buyers. That on the 28th January, 1819, the plaintiffs issued a second execution, on which the defendant again. returned that the same goods and chattels still remained in his hands for want of buyers. .That on the 12th August, 1819, they issued a writ of venditioni exponas, which the next day was delivered to the defendant, who instead of selling the goods and chattels which he had seized, delivered them to Ogden, Smedes, and Butler-for which this action is brought.

The defendant pleads-First, the general issue—and secondly, that Wm. H. Crawford, Secretary of the Treasury of the United States, pursuant to the act to provide for mitigating or remitting forfeitures, &c. on the 9th February, 1818, did remit under his hand and seal to the said Ogden, "all the right, claim, and demand of the United States, and of all others whomsoever, to the forfeitures for which the said judgment was rendered, upon payment of the duties which would have been payable if the importation had been lawful, and the costs and charges, and on payment of five hundred dollars to be distributed among the custom-house officers in the proportions prescribed by law."

That on the 19th December, 1818, the Secretary issued a second warrant of remission, the former being thought defective, of similar import with the first, and on the same terms.

That after the receipt, and before the return of the venditioni exponas, to wit, on the 1st September, 1819, these warrants of remission were served on the defendant, by Ogden,

United States v. Thomas Morris.

Smedes, and Butler, who had complied with all the terms therein mentioned, and did demand of him a restoration of the property mentioned in his returns to the executions aforesaid, which was delivered to them accordingly. The plea contains an averment, that the judgment aforesaid was rendered on a bond given for the appraised value of the brig Hollon, and a part of her cargo, by reason of the forfeitures mentioned and intended in and by the warrants of remission. aforesaid.

The plaintiffs in their replication to the second plea admit the issuing of the warrants of remission, but say, that at the times of recovering the judgment aforesaid-of issuing the executions thereon-of the seizure, forfeiture, and condemnation of the said brig and cargo-of issuing and serving the said warrants, and of the compliance with the terms thereof, Isaac Ilsley and James C. Jewett were respectively Collector and Surveyor for the district of Portland and Falmouth, in the district of Maine. That the former, as Collector, on the 5th July, 1813, seized the said brig and cargo as forfeited to the United States, for certain violations of law in the said replication mentioned. That on the next day an information or libel was filed in the District Court for the District of Maine, against the same, whereupon the bond aforesaid was executed, and on the 27th of May, 1817, a decree passed, declaring the said brig and cargo "to be by law forfeited," and ordering the appraised value thereof to be paid into Court in twenty days from the date of the decree, with costs. That at the September term of the said Court, judgment was rendered on said bond in favour of the United States with costs of suit. That the Collector and Surveyor, (there being no Naval Officer) were entitled to one moiety of this forfeiture, for the purpose of obtaining and satisfying which moiety the aforesaid writs of execution were sued out, of all which the defendant had notice: and the plaintiffs then aver, that this suit,

United States v. Thomas Morris.

although in their names, is for and in behalf of the said Ilsley and Jewett, and to enable them to recover damages for the injury they have sustained by the misfeasance of the defendant, and not for the benefit or behoof of the United States.

To this replication the defendant demurs, and for causes shows: That the replication is a departure from the declaration, in this-that the declaration proceeds upon a cause of action in favour of the United States, whereas the replication proceeds on a cause of action in favour of Isaac Ilsley and James C. Jewett, and for that the replication disclosed no authority for them to prosecute in the name of the United States and also for that by reason of the matters disclosed in the replication, the said writs of execution could not lawfully run or be executed elsewhere than in the District of Maine-and also for that, this action is prosecuted in the name of the United States, by an attorney on record, who is not the attorney of the United States for the Southern District of New-York.

A joinder in demurrer closes the pleadings.

The expectation of recovering in this action must arise altogether from a supposed want of power in the Secretary of the Treasury to remit, after sentence of condemnation, such portion of a forfeiture, as by law is to be distributed among the officers of the customs.

Postponing, therefore, for the present, a consideration of the several causes of demurrer, which have been assigned to the plaintiff's replication, the Court will inquire whether, after the remissions stated in the plea, a right of action can exist in any shape for the moiety for which the present one is brought; for if the right, as well of the United States as of the Collector and Surveyor, be extinguished thereby, it will follow that no action, in any form, or in any name, can be