United States v. Thomas Morris.

Another cause of demurrer is assigned which the Court is also strongly inclined to consider a fatal one. It is the one which arises from a disclosure of the fact in the replication that the writs of execution which issued from the District Court of Maine, were for the sole benefit of Ilsley and Jewett, and it is therefore asked what right these gentlemen had to direct an execution to any other but to the Marshal of that district.

Executions on judgments in Courts of the United States obtained for their use, may run into any district or territory. This is a high privilege, to enable the government to collect their debts with greater facility than other creditors, and is therefore carefully confined to such cases alone. If then, the Court cannot regard the interests of Ilsley and Jewett, so far as to permit them to sue in the name of the United States, they ought not to object to their being considered for every other purpose as the real and only parties whose rights are to be protected; and then, whence is derived their title to send into this district an execution on a judgment obtained elsewhere, and in which at the time of its issuing they admit the public had no interest whatever?

In answer, it has been said, that the judgment being originally for the use of the United States, the terms of the act are satisfied.

This may be, and being never very solicitous to construe an act by its spirit, where it can be avoided; this point, although not free from doubt, will be left undecided and yet, if ever an act were done contrary to the manifest intention of the legislature, it is the one we are now examining, and never was there a fitter occasion for applying the maxim of cessante ratione, cessat et ipsa lex.

The Court will also leave undecided the question whether an action will lie for an individual for a tort done to the United States by a Marshal, in not executing a writ issued in their favour, because such individual may consider himself

United States v. Thomas Morris.

aggrieved thereby in consequence of some interest he may have, or suppose himself to have, in such process.

The last cause of demurrer assigned, which the Court also considers as a good one, is, that the action is prosecuted in the name of an attorney who is not District Attorney, to whom is exclusively confided the conduct of actions in which the government is interested.

The only answer we have heard to this objection, which is not a sufficient one, is that non constat that the attorney on record is not the District Attorney. The Court judicially knows this officer-his commission is shown to it-he acts in presence of the Court in all criminal prosecutions, and on all occasions where the interests of the United States are concerned; and whenever he does appear on record, it is in his official character. The Court, therefore, can and ought to take notice of such an objection whenever its attention is drawn to the fact; and although it may not in ordinary cases, unless under special circumstances, call for the production of any authority for an attorney of this Court to appear in a particular suit, yet knowing that the United States have an attorney of their own, no other should merely at the instance of an individual be permitted to act in his place.

It should be mentioned here, that the gentleman who appears on the record as attorney for the plaintiff, was appointed by the Court, under an impression that in some cases an individual might have a right to prosecute in the name of the United States, in which if the District Attorney refused to appear, the Court might empower some one to act in his stead. Whether this be correct or not, the Court is now satisfied that the District Attorney was right here in refusing to act, and that the real plaintiffs, if there be any cause of action against the Marshal, should have sued in their own

names.

United States v. Thomas Morris.

A suggestion was made, although it did not appear to be relied on, that these very questions, or some of them, had been decided by the District Court of Maine and between these same parties. If so, such judgment should have been spread on the record; but in looking at the proceedings of that Court on the petition of Ogden, Smedes, and Butler, it does not appear on what ground the prayer of it was rejected, and most certainly several of the questions which have been made here, could not have occurred on that occasion.

Judgment must be entered for the defendant.

CIRCUIT COURT OF THE UNITED STATES,

CONNECTICUT, APRIL TERM, 1809, AT NEW-HAVEN.

BEFORE

Hon. BROCKHOLST LIVINGSTON, Associate Justice of the Su preme Court.

Hon. PIERPOINT EDWARDS, District Judge.

THE SLOOP ACTIVE.

A vessel licensed for the cod-fishery under the 32d section of the act for enrolling and licensing vessels, during the embargo laws took on board a quantity of goods without inspection at a wharf in New-London, to transport about five miles to Mistic river, in the same district, but was seized when a mile and a half on her way. Holden, that although she had not violated any of the provisions of the embargo laws, she was forfeited for being employed in another trade than that for which she was licensed.

It seems, that no penalty was intended to be inflicted by the 2d section of the additional embargo law of the 25th of April, 1808, for loading a vessel without inspection, but that the penalty for leaving the district without a clearance, which could be obtained only on inspection, was thought by the legislature to be alone a sufficient sanction to secure an inspection.

It seems, that the penalties there mentioned were intended to apply to the inspecting officers.

LIVINGSTON, J. ABOUT the facts which produced this prosecution, there is little or no controversy.

It appears that the sloop Active, being regularly licensed to carry on the cod-fishery, and owned by Henry Billinger and William A. Morgan, who now appear as claimants of the vessel, on the 5th of July last, while lying at a wharf in the port of New-London, took on board the articles mentioned

The Sloop Active.

in the libel, for the purpose of transporting them to Mistic river in Groton, in the same district, about five miles from said wharf. That Gates, who claims the principal part of the cargo, never was an owner, master, or marine of said sloop. That the cargo was put on board without the knowledge, and not under the inspection of any of the revenue officers of the District of New-London. And that the vessel being then on her way to Mistic river, was seized about one mile and a half below the town, by a boat belonging to a

revenue cutter.

The first objection taken to this proceeding of the sloop Active, and urged as a cause of condemnation, is the manner in which the cargo was put on board, which it is insisted ought to have been done under the inspection of a revenue officer. This, it is thought, is rendered necessary by the 2d section of the supplementary embargo law, passed 25th April, 1808, taken in connexion with the 27th and 50th sections of the collection law.

By the first, no vessel of this description could, during the continuance of certain acts, receive a clearance, (which had been considered necessary by the preceding section,) unless the lading were made under the inspection of the proper revenue officers, subject to the same regulations and penalties as are provided by law for the inspection of goods imported into the United States.

If the legislature by this clause, intended to subject a vessel and cargo to forfeiture for the omission of a regular inspection previous to her lading, it must be allowed that they have not been very happy in the choice of their expressions. If there be any ambiguity in a penal act, and consequently considerable doubt whether a forfeiture has accrued, it will always be a very good reason to acquit the property. It can not be the duty of a Court, by nice discriminations and constructions, to bring within the operation of a penal statute any