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651 Chests of Tea v. United States.

rects; and as evidence that the teas were lawfully imported, a certificate, in due form of law and duly signed and sealed, was then issued to accompaay each of said chests of tea, and delivered to Thompson; which certificates afterwards came into the hands of the claimants, and are now held by them : That the claimants being in the practice of making advances on teas received by them for sale, the teas being a pledge for their reimbursement, Thompson, on the 12th of July, 1825, applied to them, and proposed to transfer a large lot of teas, to be sold by them, among which were those in question, on their making him an advance; and that they accordingly advanced to him 100,000 dollars, and soon after other large sums. The claim then set forth the instrument by which said teas were conveyed to the claimants, from which it appeared, that 17,274 packages of tea were assigned as collateral security for certain notes granted and to be granted by the claimants to Thompson, with power to enter the same from custom-house stores, and to secure the duties thereon, should it be deemed necessary. The claim further stated, that Thompson at the same time endorsed and delivered to the claimants the bills of lading and invoice of said teas, and also delivered to them his key of the custom-house store, containing said teas, among which were the teas in question : That the claimants having long dealt with Thompson, in selling teas for him at public and private sale, and knowing the manner in which he had bonded and stored the teas in question, and that they could not be delivered from the store until the duties had been paid or secured to be paid, and that a permit must be obtained for the delivery of the same, they occasionally delivered to Thompson their key, that he might deliver the teas to purchasers, believing, as the officers had the other key, no teas would be delivered improperly. That on the 5th of November, 1825, Thompson applied to them, informing them, that he was about selling the 651 chests of tea to Smith and Nicoll, for which they were to give their notes,

651 Chests of Tea v. United States.

and which he would give to the claimants in part payment of their said advances; and that they thereupon delivered Thompson the key to obtain the teas. That Smith and Nicoll knew of the claimants' property in the teas, and understood that the notes were to be paid to them; but that after the arrival of the teas in New-York, they called on Smith and Nicoll, and demanded the teas, or that they should pay for them; the claimants not then suspecting that they had been improperly obtained from the public stores. The claim also stated, that the teas were shipped from Philadelphia 10 NewYork, and entered and cleared at those ports by the customhouse.

The special verdict found, that the teas were imported, entered, landed, and inspected according to law, and as set forth in said claim and answer.

That the duties imposed by law on the said teas, on being so imported, have not been paid ; but that the same had been secured to be paid in no other way than by said Thompson's general bond, and by storing said teas as provided by law, and in manner set forth in the answer and claim.

That at the time said teas were found in said store, the certificates provided by law to accompany each chest did not accompany each chest of said tea; but that each chest of tea was duly marked, and then bore all the marks on each chest which the law requires; and that the certificates were, at the time when said teas were found in Philadelphia, in the hands of the claimants, as set forth in the claim.

That said teas were not concealed in manner and form as is set forth in said information.

That the claimants, until after the teas were found in said store in New York, were wholly ignorant of the manner in which they had been obtained from the store in Philadelphia without paying the duties due thereon, or giving further bond to secure the same.

651 Chests of Tea v. United States.

And that said teas were transported to the city of NewYork, in manner set forth in the claim.

D. B. Ogden and S. P. STAPLES for the plaintiffs.
R. Tillotson, D. A, for the defendants.

THOMPSON, J. This case comes up on a writ of error to the District Court of the Southern District of New York. The seizure of the teas having been made upon land, the information was filed in that Court, as a Court of Common Law, and the cause tried by a jury, and a special verdict found, which ascertains and settles all matters of fact in the cause.

The information sets out that the teas were imported into the United States in July, 1825, from Canton, in the ship Benjamin Rush, and were subject to the payment of duties; and then alleges the following grounds upon which the forfeiture is claimed:

1st. That the teas were unladen and delivered from the ship or vessel in which they had been imported at Philadelphia, without having been entered at any custom-house or in the office of any Collector of the customs in the United States, and without any permit from any Collector and Naval Officer; and that the duties imposed by law on the said teas had not been paid or secured to be paid to the United States.

2d. That the teas so imported ought, according to the provisions of the act in such cases made and provided, to have been marked, and accompanied with the certificates required by the act; and were found concealed in a store in Pearlstreet, in the city of New York, in the possession of some person unknown to the District Attorney, unaccompanied by the marks and certificates prescribed by law, and that the duties had not been paid or secured to be paid.

3d. That the said teas, so imported, &c. ought to have

651 Chests of Tea r. United States.

been marked, and accompanied with certificates, as required by the act in such cases made and provided ; and were found in a store in Pearl-street, in the city of New-York, in the possession of Smith and Nicoll, unaccompanied by such marks and certificates as are prescribed by law, on which said teas the duties had not been paid or secured to be paid.

To this information, Lippincott and Co. interpose their claim and answer, setting out particularly and circumstantially the importation of the teas by Edward Thompson; that they were duly entered at the custom-house in Philadelphia, and unladen and landed in the presence of a custom-house officer, under a permit from the Collector, and each chest duly inspected, weighed, marked, and numbered, and a certificate issued accompanying each chest, as by law required : That Thompson, the importer, gave his bond for the duties : That the teas were deposited in store according to the provia sions of the 62d section of the collection law of 2d March, 1799 ;a and then setting out the purchase and transfer of the teas to the claimants, and denying all knowledge of the teas having been illegally or in any improper manner taken from the stores where they were deposited. And traversing the allegations in the information ; that the teas were unladen, and delivered, without having been duly entered, or without a permit, or without the duties having been paid or secured to be paid, or that the teas were concealed, unaccompanied with the marks and certificates prescribed by law..

The special verdict finds, that the teas were imported, entered, landed, and inspected according to law, and as set forth in the claim and answer.

That the duties imposed by law on the teas, had not been paid, nor secured to be paid in any other manner, than by

a 3 Vol. L. U. S. 193.

651 Chests of Tea v. United States.

said Thompson's general bond, and by storing said teas as provided by law, and in the manner set forth in the claim and answer.

That when the teas were found in New-York, the certificates provided by law to accompany each chest, did not accompany them, but were in Philadelphia, in the hands of the claimants ; but that each chest bore all the marks required by law, and as set forth in the claim.

That the teas were not concealed as set forth in the information.

That the claimants, until after the teas were found in NewYork, were wholly ignorant of the manner in which the same had been obtained from the store in Philadelphia, without paying the duties thereon, or giving further bond to secure the same.

And that the teas were transported to the city of NewYork, in the manner set forth in the claim.

In examining the questions which are presented by this case, it is to be borne in mind, that it is a proceeding against these teas as forfeited to the United States, by reason of an alleged violation of some part of our revenue laws; and not to regain the possession of the property, of which the United States may have been wronfgully or fraudulently deprived, so as to enable them to enforce payment of the duties for which there may be a lien. And it is a proceeding to enforce their forfeiture against innocent bona fide purchasers of the property, who are not chargeable with the least misconduct or even negligence, by which the government lost the possession it once had of the teas.

The manner in which, or the means by which that possession has been lost, are not particularly disclosed by the record. But enough is shown to warrant the conclusion, that it must have been effected by the misconduct or negligence

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