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United States v. One Case of Hair Pencils.

duty of the Collectors in all cases, whether fraud is suspected or not, to cause to be opened and examined, at least one package out of every invoice, and one package at least out of every fifty packages of every invoice; and the only inquiry he is authorized to make on a full inspection of the goods, is whether the packages contain any articles not described in the invoice; nothing is said about fraud or accident. The forfeiture is declared to have been incurred, when the fact of such difference between the entry and the invoice is found to exist. Would the Collector be authorized under the act of 1818, to inquire whether the difference arose from mistake or accident, and to relinquish the seizure if it should be so found? I apprehend not. But if the proviso remains in full force, it preserves the power and authority of the Collector in this respect, as well as that of the Court; both are coupled together, and must stand or fall together. Under the act of 1818, a different tribunal is expressly substituted, to determine whether the difference arose from mistake or accident, and not from fraud. By the 25th section it is enacted, "that all penalties and forfeitures incurred by force of this act, may be mitigated or remitted in the manner prescribed by the act of the 3d of March, 1797." By which power is given to the Secretary of the Treasury, "to mitigate or remit, fines, forfeitures, or penalties, or any part thereof, if in his opinion the same shall have been incurred without wilful negligence, or any intention of fraud in the persons incurring the same." This is the very inquiry authorized by the act of 1799, to be made by the Collector or by the Court. And when the act of 1818, submits this question to the decision of another tribunal, it is, within the authorities I have referred to, an im- . plied repeal of the former provision on the same subject.

This was undoubtedly a question resting in the sound discretion of Congress; and many weighty considerations might

12 Vol. L. U. S. 585.

United States v. One Case of Hair Pencils.

be suggested as affording reasonable grounds for the substituted provisions, on this subject. Under the law of 1799, when the Court decided the question, there must have been either an entire acquittal, or a total forfeiture. Under the authority given to the Secretary of the Treasury, he may remit in whole or in part, so as to meet the equity of the various cases that may occur. He is entrusted with equitable powers to grant relief, when by the letter of the law a penalty, or forfeiture, had been incurred. It is not an unlimited discretion, however, with which he is intrusted; he can only grant relief when the forfeiture has in his opinion been incurred, without wilful negligence or any intention of fraud.

That it was intended by the act of 1818, to repeal or do away the proviso to the 67th section of the act of 1799, as well as the enacting clause, is strongly corroborated by the 15th section of the act of 1st March, 1823. The enacting clause here, is substantially the same as the 22d section of the act of 1818; but to which is added a proviso, " that the Secretary of the Treasury be, and he is hereby authorized, to remit the said forfeiture, if in his opinion the said article was put in by mistake or without any intention to defraud the revenue." This is no more than incorporating by way of proviso to this section, what was contained in the act of 1818, by reference to the act of 1797, where general power is given to the Secretary of the Treasury to grant relief in such cases. Should a seizure be made under the 15th section of the act of 1823, for want of a correspondence between the invoice and package, it would not I presume be contended, that upon a trial for the forfeiture, it would be a question for the jury to decide, whether this arose from mistake, and without an intention to defraud the revenue. And if not under this act, I am unable to discover why it would be proper under the act of 1818; which contains the same provision, although in a lit

m 2 Sess. 17th Con, ch. 20.

United States v. One Case of Hair Pencils.

tle different form and shape. Under both acts, I consider the Secretary of the Treasury the only proper authority to decide, whether the want of correspondence between the package and invoice, arose from mistake and not design; and that the Court below erred in submitting this question to the jury. If such variance did in point of fact exist, the law has pronounced the forfeiture, and relief is only to be had through the Secretary of the Treasury.

The judgment of the District Court must therefore be reversed.

R. TILLOTSON, D. A. for the plaintiffs.

G. GRIFFEN for the defendants.

Ward v. Arredondo.

WARD V. ARREDONDO et al.

The Circuit Courts are not deprived of their jurisdiction where it arises from the citizenship or alienage of parties, by the joining of a mere nominal party, who does not possess the requisite character.

But where, in equity, a decree against such party is essential to the relief sought, he is not a mere nominal party. Where there are several defendants entitled on appearance, to remove a cause from the State Court into a Circuit Court, some of whom have appeared and others not, those who have appeared cannot alone remove the cause. But this rule is confined to cases, where from the subject matter of the suit, the judgment or decree must be joint.

Defendants can remove the cause or appear in the Circuit Court at different times, where their appearance is entered at different times in the State Court.

Where some of the defendants have removed the cause regularly into a Circuit Court, the others cannot enter an original appearance in such Court. The Circuit Court can remand the cause in case the defendants do not all eventually appear.

A State Court cannot cause an appearance to be entered nune pro tunc, so as to entertain a motion for removal.

THOMPSON, J. THIS is a motion, that the appearance of Fernando Arredondo, one of the defendants, be entered in this Court, for the purpose of removing the cause from the State Court, where it was commenced, pursuant to the act of Congress in such case made and provided.

A brief statement of the situation of the cause is necessary to a right understanding of the questions that are presented for consideration.

A bill in equity was filed by Ward, a citizen of the state of New-York, against the Arredondos, who are aliens, and Thomas, who is a citizen of the state of New-York, for the specific performance of a contract between the Arredondos and Ward, for the conveyance by them of a certain tract of land. in Florida, under and by virtue of a contract which had been

Ward v. Arredondo.

entered into between the parties, for the sale and purchase of the land in question, a deed for which had been duly executed by the Arredondos, and sent to Thomas for delivery, with certain instructions which will be noticed hereafter. The main object of the bill, was to compel a delivery of the deed to Ward, and to restrain Thomas from returning the same to the Arredondos, until the merits of the suit between them and Ward should be determined. Thomas appeared in the State Court, and answered the bill.

One of the Arredondos has heretofore appeared in the State Court, and petitioned for a removal of the cause into this Court, and his appearance has been duly entered here. We lay out of view the objection urged on the argument, that the cause was not in the State Circuit Court when his appearance was entered, and the petition to remove the cause into this Court was filed. It is alleged that the cause had been removed from that Court into the Court of Chancery by appeal, and had not been remitted to the State Circuit Court, at the time the appearance was entered. We assume for the purpose of the present motion, that the cause was regularly in the State Circuit Court, and that the appearance of one of the Arredondos was duly entered there.

Under this state of the case, the questions presented for consideration, are:

1st. Whether, as Ward the complainant and Thomas one of the defendants, are both citizens of New-York, the cause can be removed into this Court.

2ndly. As to the practice of removing causes from the State Courts, when there are several defendants, and their appearance in the State Court is entered at different times.

It is a well settled rule, and indeed has not been denied by the defendants' counsel, that when the jurisdiction of this Court depends on the character of the parties, and such party, either plaintiff or defendant, consists of a number of indi

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