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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 assignor.
ib.
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.

ib.

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EXECUTIONS.

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

1.

Vide CHANCERY, 5.

FORFEITURES.

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. 1
2. And where 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.

ib.

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
necessity an exception to the
penal operation of those acts.
ib.
5. But if Congress have 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 which 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.
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-
ty.
ib.
9. The language of the 2d sec-
tion of the embargo law of the

32

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 any 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.
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-

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Having been seized for a vio-
lation of the law, the Court
decreed her restoration. ib.
14. Where goods are libelled
under the 67th section of the
law for the collection of duties
for disagreeing with the en-
tries, and the claimant sets up
mistake as an excuse,-the
circumstance that probable
cause of seizure has been
made out, does not impose on
the claimant the necessity of
making out an unusually clear
case of mistake. All he has to
do is to produce ordinary
proof. United States v. 9
Packages of Linen. 129

15. It was holden a sufficient
and legal excuse for an incor-
rect entry of goods, that they
were entered from an invoice
made out in great hurry and
agitation, while the goods were
packed at Caen, in the absence
of the owner, in order to se-
cure them by removal from
an apprehended pillage by the
Prussian soldiery, who occu-
pied the place.
ib.
16. How far a Court can regard
the innocence of a party when
the facts of a case subject it
to the penalties of a statute,
and especially of the collection
law? Quere. United States v.
Thomas Morris.
209

17. A vessel licensed for the
cod-fishery under the 32d sec-
tion of the act for enrolling
and licensing vessels, during
the embargo law, took on
board a quantity of goods with-
out inspection at a wharf in
New-London, to transport
about five miles to Mistic ri-

ver, in the same district, but
was seized when a mile and
a half on her way: Holden,
that although she had not vio-
lated any of the provisions of
the embargo laws, she was
forfeited for being employed
in another trade than that for
which she was licensed. The
Sloop Active.

247
18. 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 ves-
sel 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.

ib.
19. It seems, that the penalties
there mentioned were intend-
ed to apply to the inspecting
officers.

ib.
20. A vessel which, during the
non-intercourse law, took a
cargo at St. Croix for Cadiz,
with the intention of touching
off New-Haven on her way
thither, for a supply of provi-
sions, and of terminating her
voyage in the United States,
if by law it could be done, was
held not to be forfeited under
the 6th section of that law,
which provides against the
putting goods on board a ves-
sel with the intention of im-
porting them into the United
States. The ship Ann Maria.

256
21. Where goods are seized as
forfeited, under the act of the

act.

20th of April, 1818, for being
entered at the custom-house
differently from the invoice,
the inquiry cannot be made at
the trial, whether such differ-
ence proceeded from accident
or mistake, the question being
referred exclusively to the
Secretary of the Treasury.
United States v. One Case Hair
Pencils.
400
22. Nor has the Collector a right
to make such inquiry on the
seizure of goods under this
ib.
23. The provision in the act of
the 2d of March, 1799, allow-
ing such inquiry to be made
by the Court or Collector, is
impliedly repealed by the act
of 1818. Rules of construc-
tion as to the repeal of sta-
tutes by implication. ib.
24. The spirit of the revenue
laws is not to create a forfei-
ture of property, except for
acts of the owner attended
with fraud, misconduct, or ne-
gligence. United States v. 651
Chests of Tea.
499
25. He is not to suffer for the
fraud, misconduct, or negli-
gence of the revenue officers,
in which he does not partici-
pate.
ib.
26. Spirits, wines, and teas are
not subject to seizure, under
the 43d section of the collec-
tion law, which declares, that
"if any chest, &c. shall be
found in the possession of any
person, unaccompanied with
the marks and certificates, it
shall be presumptive evidence
that the same is liable to for-
feiture," unless the certifi-

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27. "Possession of any person,'
as used in this section, means
the possession of the purcha-
ser, to whom the certificates
are required to be delivered
on a sale, and not the posses-
sion of a wrong doer. ib.
28. The collection law is adap-
ted to a regular and usual
course of business, and ex-
traordinary cases where a
compliance with its letter is
impracticable, do not come
within its sense and meaning.
ib.

29. The information alleged,
that the teas were unaccom-
panied by marks and certifi-
cates; but the proof was, that
the certificates only were
wanting Held, that the aver-
ment was unsupported by
proof.
ib.
30. And the necessity of this
allegation, shows that the true
construction of the act is, that
both must be wanting.
ib.
31. The want of marks and cer-
tificates, and not the illegal
importation or non-payment
of duties, is the specific cause
of forfeiture under this sec-
tion.
ib.
32. And this is evident, from its
not being necessary to allege
in the information, that the
teas were illegally imported,
or the duties unpaid, but only
that they were unaccompa-
nied with marks and certifi-
cates.

ib.
33. So of the other provisions.
of the act, their object is to
guard against illegal importa-

tion and the non-payment of
duties; but the forfeiture
which they create is incurred
only by a violation of the spe-
cial regulations which the law
has provided as guards and
checks.
ib.
34. The marks and certificates,
being evidence only of a law-
ful importation, the want of
them affords no presumption
of the non-payment of duties.

ib.

35. Impolicy of allowing a for-

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feiture where it is to be the Vide BONDS, 1-4. DUTIES. Is-

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ib.

officers, as might entitle them-
selves to a share of it.
36. The general bond of the im-
porter for duties on teas, ac-
companied with a deposite of
the teas, as provided for by
the 624 section of the collec-
tion law, is a securing of the
duties, within the meaning
and true interpretation of the
43d section.
ib.
37. And if this were not such a
securing of the duties, the
teas could not have been
landed.
ib.
38. A deposite, in all cases un-
der this act, is in effect a
pledge, and in lieu of the per-
sonal sureties dispensed with,
unless specially declared to be
otherwise.
ib.
39. Whether, if government re-
gain the possession of teas ir-
regularly obtained from their
keeping, without the payment
of duties, they can enforce
their lien for the duties, or
how long such lien continues
after the teas have got into

FORMER. JURISDICTION, 1.
REMISSION OF PENALTIES. SEA
STORES. SHIPS, 9-11.

FRAUD.

Vide BOTTOMRY, 6.

FREIGHT.

1. One chartered the hold of a
vessel for a voyage, covenant-
ing to pay freight, the owner
appointing and paying the mas-
ter and crew, and fitting the
vessel. A third person ship-
ped goods, consigning them to
the defendant, who, on re-
ceiving them from the master,
promised to pay the freight.
Held, that the charter party
did not deprive the owner of
his lien for the freight, and
that the defendant became lia-
ble to the owner for the freight
by his acceptance of the goods.
Ruggles v. Bucknor.
358
2. Whether the owner has a lien

under any circumstances on a
part of the cargo not deliver-
ed, for the freight of the
whole? Quere.

ib.

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