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1. Whether an execution for the

sole benefit of an individual,
on a judgment of the United
States, can be issued into any
district of the United States as
it might be if it were for their
use ? Quere. United States
v. Thomas Morris. 209


of the Treasury should be ex-

7. As where soms were charged

as advanced to a paymaster of
the militia, and witnesses were
examined to prove that they
believed, from the manner in
which the charges were made,
that a part of such sums were
to pay the regular troops, their
testimony was held inadmissi-

8. A judgment or decree of a

court can be used as evidence
in another suit only as against
parties and privies; and if in
the second suit there are new
parties, against whom the judg.
ment could not have been used,
had it been adverse, they can-
not introduce it in their fa-

vour. Baring v. Fanning. 549
9. And it makes no difference

that the new parties, as assig-
nees of a chose in action are
endeavouring, together with
the assignor, to enforce the
same right that was establish-
ed in the former suit in favour
of the assigpor.

10. And in such a case, where a

Court of Chancery had order-
ed an account, and made a de-
cree thereupon in favour of
the assignor, it was held not
to be a matter decided ex di-
recto, by a court of competent
jurisdiction, so as to bring it
within the exception to the ge-
neral rule.


1. The Collector having been

clothed with a discretion, un-
der the embargo laws, to grant
permits to such foreign vessels
as were allowed to depart with
their cargoes, to take on board
necessary sea stores and pro-
visions; the Court refused to
decide, in a case where a per-
mit had been granted, that the
sea stores taken on board were
more than were necessary, it
not appearing that there was

any fraud. The Brig Isabella. I
2. And wbere it had been the

practice at the custom-house,

in such cases, to consider arms
. and ammunition for the de-

fence of the vessel as sea
stores, the court refused to
adopt a different construction.

3. A vessel which during the ex.

istence of our embargo laws,
departed from one port in the
United States on a voyage to
another, but was obliged from
irresistible necessity to put
into a foreign port, and sell
her cargo, was not guilty of a



violation of those laws. The

Brig William Gray. 16
4. From a fair comparison of the

different embargo acts with
each other, it may be collected
that Congress meant express
ly to make such an instance of
pecessity an exception to the
penal operation of those acts.

5. But if Congress bave neglect-

ed to provide for such an ex-
ception, it is the duty of the
Courts to interpret those laws,
as they do all penal statutes,
by considering the exception
as implied. Consent is essen-
tial to guilt; and the legisla-
ture is supposed to pass all pe.
nal laws with the understand-
ing that Courts will not inflict
the penalties for such viola-
*tions as are unintentional. ib.
6. This is not, therefore, one of

those cases which are refer-
red for mitigation to the Se.

cretary of the Treasury. ib.
7. The rule that penal statutes

are to be construed strictly,
means that they ought not to
be extended by their spirit or
equity to other offences than
those wbich are clearly de-
scribed and provided for. But
Courts are not prevented by
this rule from inquiring into
the intention of the legislature.

The Schooner Enterprise. 32
8. Where there is such an ambi-

guity in a penal statute, as to
leave reasonable doubts of its
meaning, it is the duty of a
Court not to inflict the penal-

9. The language of the 2d sec-

tion of the embargo law of the

25th of April, 1808, is so loose
that it is impossible to deter-
mine whether any offence and
forfeiture were intended to be
created. At-ny rate the re-
ference as to the penalty to the
collection law is not to the 50th
section of that law which pro-
vides against unloading goods

in the night. i , ib.
10. The promulgation of laws

should be such as to afford
every person who is to be af-
fected by them a reasonable
opportunity of being as early
as possible acquainted with
them. The Ship Cotton Plan-

11. As it regards trade laws, un

less previous notice of them
be brought home to the party
charged with violating their
penal provisions, they are to
be considered as beginning to
operate in the respective col-
lection districts only from the
time they are received from
the proper department by the
collector. .

12. The Court in considering a

question of forfeiture, disre-
gards a refusal of the Secreta-
ry of the Treasury to remit
the penalty. ,

13. The embargo law was pass-

ed 22d December, 1807. A
vessel cleared out and sailed
from St. Mary's, Georgia, on
the 15th of January, and in
the evening the collector re.
ceived the information of the
passage of the law and gave
public notice of it. It did not
appear that it was known to
the master or owners of the
vessel prior to her sailing.


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Having been seized for a vio. ver, in the same district, but
lation of the law, the Court was seized when a mile and

decreed her restoration. ib. a half on her way: Holden,
14. Where goods are libelled that although she had not vio-

under the 67th section of the lated any of the provisions of
law for the collection of duties the embargo laws, sbe was
for disagreeing with the en forfeited for being employed
tries, and the claimant sets up in another trade than that for
mistake as an excuse,-the which she was licensed. The
circumstance that probable Sloop Active.

cause of seizure bas been 18. It seems, that no penalty was
made out, does not impose on intended to be inflicted by the
the claimant the necessity of 2d section of the additional
making out an unusually clear embargo law of the 25th of
case of mistake. All he has to April, 1808, for loading a ves-
do is to produce ordinary sel without inspection, but
proof. United States v. 9 that the penalty for leaving the

Packages of Linen. 129 district without a clearance,
15. It was holden a sufficient which could be obtained only

and legal excuse for an incor on inspection, was thought by
rect entry of goods, that they the legislature to be alone a
were entered from an invoice sufficient sanction to secure an
made out in great hurry and inspection.
agitation, while the goods were 19. It seems, that the penalties
packed at Caen, in the absence there mentioned were intend-
of the owner, in order to se- ed to apply to the inspecting
cure them by removal from officers.

an apprehended pillage by the 20. A vessel which, during the
Prussian soldiery, who occu non-intercourse law, took a
pied the place.

ib. cargo at St. Croix for Cadiz,
16. How far a Court can regard with the intention of touching

the innocence of a party when off New Haven on her way
the facts of a case subject it thither, for a supply of provi.
to the penalties of a statute, sions, and of terminating her
and especially of the collection voyage in the United States,
law ? Quere. United States v. if by law it could be done, was
Thornas Morris.

209 held not to be forfeited under
17. A vessel licensed for the the 6th section of that law,

cod-fishery under the 32d sec which provides against the
tion of the act for enrolling putting goods on board a ves-
and licensing ressels, during sel with the intention of im-
the embargo law, took on porting them into the United
board a quantity of goods with States. The ship Ann Maria.
out inspection at a wharf in

New-London, to transport 21. Where goods are seized as
about five miles to Mistic ri- forfeited, under the act of the

20th of April, 1818, for being cates and marks are both
entered at the custom-house wanting

differently from the invoice, 27. “Possession of any person,"
the inquiry cannot be made at as used in this section, means
the trial, whether such differ the possession of the purcha-
ence proceeded from accident ser, to whom the certificates
or mistake, the question being are required to be delivered
referred exclusively to the on a sale, and not the posses-
Secretary of the I'reasury. sion of a wrong doer. ib.
United States v. One Case Hair 28. The collection law is adap-

400 ted to a regular and usual
22. Nor has the Collector a right course of business, and ex-

to make such inquiry on the traordinary cases where a
seizure of goods under this compliance with its letter is

ib. impracticable, do not come
23. The provision in the act of within its sense and meaning.
the 2d of March, 1799, allow-

ing such inquiry to be made 29. The information alleged,
by the Court or Collector, is that the teas were unaccom-
impliedly repealed by the act panied by marks and certifi-
of 1818. Rules of construc cates ; but the proof was, that
tion as to the repeal of sta- the certificates only were

tutes by implication. ib. wanting : Held, that the aver-
24. The spirit of the revenue ment was unsupported by
laws is not to create a forfei proof.

ture of property, except for 30. And the necessity of this
acts of the owner attended allegation, shows that the true
with fraud, misconduct, or ne- construction of the act is, that
gligence, United States v. 651 both must be wanting. ib.
Chests of Tea.

499 31. The want of marks and cer-
25. He is not to suffer for the tificates, and not the illegal

fraud, misconduct, or negli importation or non-payment
gence of the revenue officers, of duties, is the specific cause
in which he does not partici- of forfeiture under this sec-
ib. tion.

26. Spirits, wines, and teas are 32. And this is evident, from its
not subject to seizure, under not being necessary to allege
the 43d section of the collec in the information, that the
tion law, which declares, that teas were illegally imported,
“ if any chest, &c. shall be or the duties unpaid, but only
found in the possession of any that they were unaccompa-
person, unaccompanied with nied with marks and certib.
the marks and certificates, it cates.

shall be presumptive evidence 33. So of the other provisions
that the same is liable to for of the act, their object is to
feiture," unless the certifi guard against illegal importa-
tion and the non-payment of circulation in the market?
daties; but the forfeiture Quere.
wbich they create is incurred 40. A forfeitore for the embez.
only by a violation of the spe- zlement of wines, &c. under
cial regulations which the law the 5th section of the act of
has provided as guards and April 20, 1818, is incurred

ib. only by the act of the owner,
34. The marks and certificates, and not of a mere stranger, or

being evidence only of a law. the inspectors of the revenge.
fal importation, the want of But the provisions of this act
them affords no presomption have no application to a case
of the non-payment of duties. arising under the 43d section

ib. of the collection law. ib.
35. Impolicy of allowing a for-
feiture where it is to be the Vide Bonds, 144. DUTIES. Is-
consequence of the fraud or FORMER. JURISDICTION, J.
degligence of such revenue REMISSION OF PENALTIES. SEA
officers, as might entitle them. STORES. Shirs, 9-11.

selves to a share of it. ib.
36. The general bond of the im-

porter for doties on teas, ac-

companied with a deposite of
the teas, as provided for by

the 62d section of the collec-
tion law, is a secoring of the 1. One chartered the hold of a
doties, within the meaning vessel for a voyage, covenant-
and true interpretation of the ing to pay freight, the owner
43d section.

ib. appointing and paying the mas-
37. And if this were not such a ter and crew, and fitting the

securing of the duties, the vessel. A third person ship-
teas could not bave been ped goods, consigning them to

ib. the defendant, who, on re-
38. A deposite, in all cases up ceiving them from the master,

der this act, is in effect a promised to pay the freight.
pledge, and in lieu of the per Held, that the charter party
sodal sureties dispensed with, did not deprive the owner of
upless specially declared to be his lien for the freight, and

ib. that the defendant became lia-
39. Whether, if government re ble to the owner for the freight

gain the possession of teas ir by his acceptance of the goods.
regularly obtained from their Ruggles v. Bucknor. 358
keeping, without the payment 2. Whether the owner has a lien
of doties, they can enforce under any circomstances on a
their lien for the duties, or part of the cargo not deliver-
how long such lien continues ed, for the freight of the
after the teas have got into whole ? Quere.

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