United States v. Thomas Morris.

power is to be tested. He is to direct the prosecution to cease and be discontinued.

Now a prosecution in legal or common phraseology, is not at an end so long as an execution be necessary to produce the fruits of it. It is the last, but a very important step, and one which must take place if no settlement intervenes, and be actually executed before there is an end of the prosecution. If then the Secretary may direct a prosecution to cease, what right can a Court have to limit his power to one stage of it, more than to another?

Under the interpretation contended for by the plaintiffs, it would be very difficult in many cases to obtain a remission, however good a title the party might make out, for more than a moiety, and perhaps not even for so much. A Court is not bound, on the appearance of a petition, to stay its proceedings on the libel. What then is an innocent man to do? He cannot deny the forfeiture, and if he does, witnesses are at hand to prove it. In this dilemma he presents his petition, but before the facts can be proved, stated, and transmitted to the Treasury, or before the Secretary has pronounced judgment on them, a sentence passes, after which, if a remission come, he must be content to lose the one half, if not the whole of his property; not because its value has been received by the Collector, but because the sentence has ascertained what was admitted from the beginning, that a forfeiture had accrued. In this very case sentence was pronounced, as appears by the decree itself, without even a claim being filed, and while a petition for remission was lying in the Secretary's office.

But at what epoch, it is asked, is this power to cease? Shall it extend even to the money after it has been received and distributed? When a Secretary shall act at so late a period as is here put, it will be time enough to decide whether he has not transcended his authority. If it be admitted that such an exercise of power would be extravagant and illegal,

United States v. Thomas Morris.

it will not follow that prior to a receipt of the money, it may not legitimately be exerted over the whole subject.

This view of the act derives much support from the uniform practice of the Treasury.

It is believed that every Secretary has remitted the whole of a forfeiture even after condemnation, and it is not known that his right so to do has, until very recently, been called in question. Considering the character and acknowledged legal talents of the gentlemen who have successively been at the head of this department, a Court may acquiesce in an interpretation which they have given to the act, without much danger of falling into error.

Nor can such remission be regarded as a mere ministerial act. It partakes much of a judicial character. It cannot be made but on evidence regularly taken, so that his act in deciding on the innocence of the claimant is as much a judicial one, as is that of the Court in pronouncing on the fact of forfeiture.

Perhaps after all, as the Secretary has jurisdiction of the matter, he had better be regarded not only as the proper person to afford relief, but as the sole judge of the extent of it, and of the time after which it cannot be granted.

Upon the whole, the opinion of the Court on this part of the case is, that as a seizure is made, with full knowledge in the Collector of this power in the Secretary, he cannot be regarded as aggrieved by its exercise, so long as the property, or the bond given for its value, remain in possession of the Court, and the money has not been received by the Collector.

The special causes of demurrer will now be disposed of. The first cause assigned is, that the replication is a departure from the declaration, in as much as the latter proceeds

United States v. Thomas Morris.

upon a cause of action in favour of the United States, whereas the replication discloses a cause of action in favour of Isaac Ilsley and James C. Jewett.

A departure in pleading takes place, when a second plea contains matter not pursuant to the former, and which does not fortify the same,-with perhaps this qualification,—that if a matter be pleaded which could not have been shown or stated in the former plea, such new matter will not always be a departure. It is certain that Courts, to avoid multiplicity in pleading, reluctantly admit any matter to be alleged in a subsequent plea, which might have been sooner set forth.

Thus, in a præcipe quod reddat, if the tenant plead that the land was devised to him, and the plaintiff reply infancy, the defendant cannot rejoin, that by custom infants may devise; this being a departure; because he ought, as the Court say, to have pleaded this matter in the first instance.

If performance of covenants be pleaded, and the plaintiff replies that the defendant did not do such an act according to the covenant, the defendant cannot in his rejoinder say that he offered to do it, and the plaintiff refused-for the tender and refusal should have been set forth in the plea.

A defendant pleaded in bar a lease for 50 years, made by a corporation, and afterwards in his rejoinder, pleads a proviso in a statute, which makes such leases good for 21 years, this was also, and for the same reason, adjudged a departure.

It is given as a rule in doctrina placitandi, that if a general matter be pleaded, where the special matter might have been pleaded, the party shall not maintain the general with the special matter. Nor is the rule, which in the case of new matter being alleged, permits the other party also to allege new matter in avoidance of it, at variance with the one just mentioned-for if the new matter here intended, be something which the party against whom it is alleged had no

United States v. Thomas Morris.

opportunity of knowing before, the one rule will consist and be in harmony with the other.

In later times the same rule has been recognised and enforced. In Willes Rep. 639, the defendant in trespass pleaded his taking the cattle, damage-feasant, and in his rejoinder, for a surcharge of common. The Court thought this a departure, as the surcharge might have been pleaded at first. In answer to these cases, it is said that an assignee of a chose in action may sue at law in the name of the assignor, and that if an obligor plead a release from the obligee in whose name the action is brought, executed after notice of the assignment, a replication which states such assignment and notice will be good. This may well be, for non constat that the assignee had any notice of the release until it was pleaded; or it may be allowed in this way, to allege a fraud in the defendant, which defeats his bar.

Without inquiring whether Courts of Law would not have done better to leave assignees to the exclusive protection of a Court of Equity, it is sufficient to remark that the new matter set forth by the plaintiffs in their replication, was not only in their knowledge at the time of filing their declaration, but was the very ground on which they expected to render the Marshal liable; and that so far from fortifying their declaration, it shows that the United States, who are plaintiffs on record, have not only no interest in the action, but that they have done all they could do to release the same. Nor is this new matter alleged with the view of setting aside the defence on the ground of any fraud in the United States or their officer.

The Court is of opinion that the first cause of demurrer is good.

The second is, that no authority is disclosed by the replication to prosecute in the name of the United States.

United States v. Thomas Morris.

It has been attempted to avoid the force of this objection by considering the real plaintiffs in the character of assignees of the judgment, although no assignment is set forth, nor is it pretended that any exists-or by regarding the United States as trustees for the Collector and Naval Officer, who have, therefore, a right to use their name. It will be going further than has yet been gone, for a Court of Law to consider persons in the situation of their Collector and Naval Officer as assignees of a judgment, or the United States as trustees for their use, merely because, if the money had been received, they would have been entitled to a share of it.

But if the United States were their trustees, and they have released the judgment, it is no reason why the cestuy que trust should not be bound at law by such release, as no fraud can be supposed in the government or its officer, nor is any pretended. It is not fit, after such an overt act on the part of the United States, to permit individuals who may think themselves injured by it, to enforce in their name, and that too in a Court of Common Law, a demand which they may suppose themselves to have against the Marshal for giving effect to such release. If they have been injured by the officer, for it is against him that a recovery is sought, it is better to force them to sue in their own name, if they have any cause of action, than to embarrass the record with legal and equitable interests, which must always be more or less productive of confusion and embarrassment.

Nor should a party lightly be permitted to avail himself of the advantage of suing in the name of the United States, when the action is brought exclusively for his own benefit, and he can sue if his claim be a good one, in his own name. Nor should any facility in a case like this be afforded, if not a matter of strict right, to sue a public officer in the name of the United States, when it appears that the only demand, if there be any, arises out of his obedience to the mandate of an officer designated by law to act in the premises.