Page images

tent, bus an evithe fre.

had time to compare that law with the present one, and cannot draw an elaborate comparison between them, but the later one appears less careful in detail and to have less real method than its predecessor, and we regret the frequent recurrence to codification and revision, an evil necessary, no doubt, to a considerable extent, but which at best is a trial of the time and patience of lawyers and clients, nullifies decisions of the courts, and stultifies the diligence of the student.

We have had time only to indicate to our readers the changes which the year has introduced into our law. We do not attempt to give a critical review of the laws, but merely to state generally what has been done, with such suggestions as readily occur upon it and upon the mode of its accomplishment. We shall probably extend our view in a similar manner to this year's legislation in some other quarters.

United States Court of Claims.

Notes of Recent Decisions in the United States Court of



Neutrals, their duties Obligations of the U. S. towards citizens haring

claims on a foreign government. The American private armed brig General Armstrong was attacked and destroyed by several British vessels of war, in the harbor of Fayal, in Sept., 1814, after a gallant defence. The Portuguese officials made no attempt to protect the brig, although she was warped under the guns of the castle. The government of the United States made continual claim on that of Portugal for redress and reimbursement to the owners of the brig, but at last, after about thirty years of controversy, referred the claim to the decision of an arbitrator, without the assent of the claimants, who were denied the privilege of being heard before, or having written arguments presented to the arbitrator. The arbitrator decided against the claim.

Held, that the United States were bound to make restitution to the owners of the brig.


Officers Eatra pay. Where an officer temporarily performs the duty belonging to one of a higher grade, he is entitled, by the act of March 3, 1835, (4 Stat. at Large, 756,) to the compensation belonging to such grade, unless it be shown that his thus acting was unnecessary or unreasonable ; and it is not competent for an executive department to make such increased compensation depend upon a particular mode of appointment or of evidence.


Capture - Prize. The frigate Philadelphia was burned in the harbor of Tripoli by Lieutenant Decatur and his party, under peremptory orders from his commanding officer, that she should be destroyed and not taken :

Held, that the frigate was not taken as prize within the meaning of the act of April 23, 1800 (2 Stat. at Large, 52), the taking having been diverso intuilu.

BAIRD v. The United States. Office - Hals-pay Satisfaction by payment of a less sum. A resolution of Congress passed September 30, 1780, provides for “ the pay and establishment of the officers of the hospital de. partment and medical staff,” specifying, among others, “regi. mental surgeons.”

October 3, 1780, a resolution was passed, providing for the reduction of certain regiments on the first of January then next, and that thereafter the army of the United States should consist of four regiments of cavalry or light dragoons, four regiments of artillery, forty-nine regiments of infantry, and one regiment of artificers, and that the regiment of artificers should consist of eight companies, and each company of sixty non-commissioned officers and privates.

January 17, 1781, a resolution was passed providing that all officers in the hospital department and medical staff, thereinafter mentioned, who should continue in service to the end of the war, or be reduced before that time as supernumeraries, should receive, during life, in lieu of half-pay, the following allowance, &c.; it then specified regimental surgeons, and gave them an allowance equal to the half-pay of a captain.

B. served as surgeon to the regiment of artificers, until he was discharged, on the reduction of his regiment, March 29, 1781:

Held, that he was entitled to half-pay for life.

June 3, 1784, Congress provided that "an interest of six per cent. per annum should be allowed to all creditors of the United States for supplies furnished or services done from the time that the payment became due.” They had previously resolved that the officers and others entitled to half-pay for life, should be entitled to receive at the end of the war their five years' full pay in lieu of the half-pay for life, “in money, that is, specie, or in securities at interest," as Congress should find most convenient.

B. applied for the benefit of this provision in 1794, and frequently thereafter, but his petition was never granted, and he died in 1805. His son and administrator, the present petitioner, also applied to Congress at sundry times from 1818. In 1836 an act was passed granting five years' full pay, as commutation, without interest. There was no proof that the petitioner consented to this as a compromise.

Held, that this grant did not bar the petitioner's claim, and that he was entitled to the half-pay to the time of B.'s death, and interest, less what he had received under the act of Congress.

[blocks in formation]

The claimant was for four years, ending in June, 1849, navy agent for the port of Baltimore, and acting purser of the naval school at Annapolis. He charged himself, as acting purser, with the sum of $ 561.10, as received from hinself as navy agent, but neglected to credit himself as navy agent, with the payment. In June, 1849, certain sums which were charged in his accounts having been disallowed him, the treasury department caused a suit to be instituted against him. At the trial he first discovered the mistake of the $561.10, but it was not allowed by the court, because it had not been presented at the treasury department, and he withdrew the item, the court remarking that if the mistake existed it would undoubtedly be corrected by the accounting officers. He afterwards applied to the department for the payment of this sum. It was refused, on the erroneous supposition of the officers that it had been passed upon by the court.

Held, that the claimant could recover this sum, but, according to the decision of Todd v. The United States, 18 L. R. 626, without interest.

District Court of the United States. Massachusetts.

UNITED STATES, by information, v. THREE Parcels of


In an information in rem for a forfeiture alleged to be incurred under the

Collection Act of 1799, c. 22, 66, it is essential to charge that the goods were entered under a false invoice, and that they were falsely invoiced with the design to evade the duties thereupon, or some part

thereof. Therefore, where such an information only alleged that the entry was

made below the actual cost, with the design, &c., and the court instructed the jury that the invoice must be falsely made, and with the design to evade the duties, and the jury found for the plaintiffs, it

was held that judgment must be arrested. It seems that such an information should be brought in the name of the

United States alone, without making the seizing officers parties.

The facts in this case are stated in the opinion of the court; it was elaborately argued, at a former day, by Hon. B. F. Hallett, district-attorney, for the United States, and Milton Andros, Esq., for the claimant. The opinion of the court was delivered June 11, 1856, by

WARE, J. – An information was filed on the 4th of June, 1855, by the district-attorney, against three parcels of embroidery, imported into the port of Boston from Liverpool, England, as subject to forfeiture, for a violation of the 66th section of the Collection Law of 1799, ch. 22. It is filed “in the name and behalf, as well of the United States as of Charles H. Peaslee, collector of the port of Boston and Charlestown, in said district, and of all other persons concerned.”

At the last term of the court the case was given to the jury, and they returned a verdict for the plaintiffs; a motion was then made (January 2,) by the counsel for the claimants, in arrest of judgment, for the supposed errors and insufficiency of the information, and several causes were . assigned for the motion. The first in natural order, though not in that adopted in the motion, is, that there is a misjoinder of parties. The form in which the infomation is presented makes Peaslee, collector, as much a plaintiff as the United States. By the 88th section of the act, it is ordered thus : “ All penalties accruing by any breach of this act shall be sued for and recovered in the name of the United States of America."

This is indeed an information in rem for a forfeiture, but I can see no reason for a distinction in this respect, between a suit in rem for a forfeiture, and a suit in personam for a penalty; and certainly when a statute peremptorily requires a suit to be in the name of a particular plaintiff, it would seem to be the intention of the legislature that his name alone should stand as plaintiff on the record, and the inference would appear to be strengthened when that plaintiff is the United States.

The reason for making the collector a party is presumed to be because he is supposed to have an interest in the suit, and the technical reason on the general principles of law would be strong for making him and other officers of the customs, who share in the prosecution, parties, if they had an interest that was absolute and indefeasible. But their rights are precarious, and dependent entirely on the pleasure of the United States. Without their consent, their interest may be released at any time, even after judgment, and un. til the proceeds are paid over to the collector and ready for distribution. McLane v. United States, 6 Peters, 404 ; United Stales v. Morris, 10 Wheat. 288. The technical reason for the joinder therefore fails.

By the general provisions and policy of the law, as well as by the practice of the courts, the seizing officers have no authority, nor are they allowed ordinarily in any way, to interfere in the management of the suit through its whole progress from the beginning to the end. There is, therefore, no reason for making them joint plaintiffs, but an obvious impropriety in doing so. When a forfeiture is ascertained and declared, it accrues in law to the United States. They receive it under the law, partly to their own use and partly as trustee for those who are entitled under the law. But this peculiarity is attached to the trust, that the trustee is not compellable to execute it, but may at pleasure remit the whole forfeiture to the claimant.

This view of the subject also seems to me to be confirmed by the general character of our fiscal laws. The sole purpose of the penalties and forfeitures with which they are so profusely studded, is the protection of the revenue. It is no part of their object, in a just and legal sense, to enrich the officers of the customs. The shares allowed to them are not allowed as a part of their compensation, in a legal sense. Their services are compensated by their salaries, and their shares of forfeitures are pure gratuities given to quicken their diligence in the performance of duties for which they are otherwise fully paid. The

« PreviousContinue »