Page images

promises held out to them by the law are, in theory, promises without consideration, mere nude tacts, and therefore, on general principles, are not binding upon the promissors. And they are not only so in theory, but so held in practice. A gift becomes irrevocable only when executed, when the thing is delivered; and the right of the officers of the customs to their shares in forfeitures, becomes perfect only after they are paid over. There are, therefore, no reasons so far as I can see, founded on general principles, why the seizing officer should be made a party plaintiff. There is a dictum in the case of Gelston v. Hoyt, 3 Wheat. 313, thrown out arguendo, that he may be a co-plaintiff. The question did not arise in the case, and it has not, therefore, the authority of a decision. The reason given for it is, that he has an interest in the case; but if I have a correct view of the law, it is not such an interest as entitles him to make himself a party; and if it be not, there is an obvious reason why he should not be clothed with the rights of a party to interpose in the management of the suit. And such appears to have been the course from the origin of the government. The direction of the first collection laws of 1789, ch. 5, § 36, was, that suits for penalties under that act should be in the name of the United States. This was copied into the amended act of 1790, ch. 35, $ 69, and from that transferred to the last general collection law of 1799, ch. 22, § 88.

The same direction is given in the registry act of 1792, ch. 6, § 8, and in the act for enrolling and licensing vessels of 1789, ch. 11, $ 21.

But however the law may be, the practice seems to have been various from an early time. In this district, it seems to have been customary for a long period, if not from the beginning, to join the collector in a libel of information, with the United States, and there is a precedent in Dunlap's Admiralty Practice, p. 372, said to have a very high authority, which is in exact conformity with this information. In the district of Maine, the only one of which I have any particular knowledge, the practice, until quite recently, was to bring the suit in the name of the United States alone. The district-attorney contends that the joinder is justified by long, if not immemorial usage, in this district, and that if in strict law it is open to objection, that the exception is declinatory in its nature, and is waived by going to trial on the merits, and cured by verdict. On the other hand, it is contended that the joinder being against the express words

[blocks in formation]

of the statute, the exception is fatal at any stage of the suit, before final judgment.

I do not, however, find it necessary to decide the case on this question, because there is another ground on which, in my opinion, the judgment must be arrested.

The other causes assigned for the arrest of judgment, and which have been insisted upon in the argument, may all be resolved into one, and that is, that the offence is not set out in the information with that clearness and distinctness which is required by the rules of pleading and the practice of the courts. It was long ago held by the Supreme Court, that an information to recover a penalty under the collection act of 1799, is in the nature of a criminal proceeding. Locke v. The United States, 7 Cranch, 339; Clifton v. The United States, 4 How. 242. The description of the offence for which the penalty is demanded must have the same kind and degree of certainty that is ordinarily required in other criminal proceedings. And although it may be true, as is argued by the district-attorney, that in the practice of our courts, all that technical accuracy of description may not be required which is held to be essential in indictments, and even in the exchequer practice, in England, and that niceties need not be observed which rest on dry precedent, the reason of which has either ceased to exist or cannot now be discovered, it is still indispensable that every circumstance constituting the offence be clearly and distinctly set out in plain and direct averments. It is not sufficient to show that a man learned in the law may find in the information, by comparing one part with another, a full description of the offence. It is, I apprehend, necessary that the offence be charged in such plain and positive terms that a plain and unlearned man, inops consilii, may clearly understand, by reading the inforınation, what is charged upon him, and to what he is required to answer, and so also, that a jury equally unlearned, may understand, from the information, what they have to pass upon. Guided by these principles, let us first look at the law which creates the offence, and then at the description of it in the information.

The language of the law is, “ That if any goods, wares, or merchandise, of which entry shall have been made in the office of a collector, shall not be invoiced according to the actual cost thereof, at the place of exportation, with a design to evade the duties thereupon, or any part thereof, all such goods, wares, or merchandise, or the value thereof, to be recovered of the person making the entry, shall be forfeited.” It is very clear from this language that three

facts must concur to complete the offence: V v First, an entry must be made of the goods.

Second, they must be invoiced not according to their actual cost.

Third, they must be thus invoiced, with the design to I evade the duties thereupon, or upon some part thereof.

Each of these facts must be found to entitle the plaintiffs to a verdict, and all of them being necessary to constitute the offence, each should be plainly and distinctly charged in the information.

To ascertain whether they are thus charged, let us look at the information. I read all that part which is descriptive of the offence. The allegation is, that an entry of these goods " was then and there, at Boston, May 26, 1855, made upon an invoice then and there produced, as and for the true invoice of said goods and merchandise according to law, when, in fact, the said entry was so made upon said invoice, below the actual cost of said goods at the place of export, and said entry was so made under the true value and cost of said goods, with the design then and there to evade the payment to the said United States, of that part of the duties chargeable according to law, upon the cost and value of said goods, which was chargeable upon the excess of said actual cost and value according to law, over and above the reduced and false value at which said goods were so entered, as aforesaid, the said goods, wares, and merchandise, being then and there imported into the United States from a foreign country, and being then and there liable to the payment of duties upon an entry upon an invoice according to their actual cost or true market value at the place of export."

Now to complete the offence, there must be undoubtedly a corrupt design to defraud the United States in the duties, and there must be some act done towards carrying that design into execution ; and it appears to my mind quite clear, that in order to bring the case within the reason of the law, this design must have existed at the time of making the invoice, and that the invoice itself must be prepared and concocted for the purpose of carrying that design into effect. The criminality of the fraudulent design is attached to the making of the invoice, and not to the entry. The entry may be honestly made by an agent, who knows nothing of the fraudulent undervaluation ; and if the forfeiture attached to the criminal intent in the entry, it might easily be avoided by keeping the consignee in ignorance of the actual cost. To prevent this, the law fastens the forfeiture to the first act in the series, by which the fraud is intended to be perpetrated and by which it may be effected, though all the subsequent agents are innocent.

The case was so put to the jury, and they were told, before they could find a verdict for the plaintiffs, they must be satisfied not only that the invoice was false, but that it was made so with the design of defrauding the United States of the duties, or a portion of them. The jury may be presumed, under the instruction of the court, to have found the fact, although it is not distinctly charged in the information.

And I now come to the question, Whether there is any sufficient allegation in the information, that the goods were not invoiced according to their actual cost, with the design to evade the payment of the duties, or any part thereof? And I think there is not. The information seems to have been framed on the idea that the forfeiture attached to the design of fraud in making the entry. The entry is charged to be made on said invoice, below the actual cost. What invoice is here meant ?

It is described above as an invoice produced, as and for the true invoice. But it is not declared to be false, except by way of inference; again, it is charged that the entry was made with a design to evade the duties; but it is nowhere distinctly and plainly charged that a false invoice was made with that design. Under this section of the statute, it appears to me that this design in making the invoice is an essential part of the offence. If it is so, the rules of pleading require that it be distinctly alleged. If it be said that the jury, under the direction of the court, found the fact, it is still true that by the strict rules of pleading in penal causes, the plaintiff can recover only according to his allegation as well as his proofs.

My opinion on the whole, is, that judgment must be arrested.

ela who that it was tuo Late té anar ceptes Verdiction Teny



District Court of the United States, Massachusetts. May

Term, 1856.

JESSE Coffin, 2d, libellant, v. John H. Shaw. — “ The


A father shipped his son, a minor, under the age of seventeen, by a con

tract in the common form, for a whaling voyage to the Pacific Ocean and elsewhere. The son faithfully did duty during the whole period of his minority, and afterwards deserted before the termination of the voyage:Held, that the desertion did not forfeit the wages of the son during

his minority, which were due to the father. The obligations of the father's contract terminated with his son's minority, and his respon

sibility for his acts ceased at the same time. A simple promise by one of the act of another person who is sui juris is

void. But a contract of guaranty or suretyship for the act of another

if on a sufficient consideration, is valid. In this case no such guaranty being proved, it could not be presumed.

THE facts in this case are stated in the opinion of the court. It was argued by A. S. Cushman, for the libellant, and J. C. Stone, for the respondent.

Ware, J. — This is a libel brought by Jesse Coffin, to recover, against the owners of the ship Alabama, of Nantucket, the lay or wages earned by George M. Coffin, his son, in a whaling voyage described in the shipping-paper as a voyage to the Pacific Ocean and elsewhere. There is no controversy as to the facts in the case. It is admitted that George M. Coffin was at the time of the contract a minor; that he was regularly shipped by the libellant, his father, for the voyage, on the 26th of May, 1846, as a cooper; that his lay or wages was to be one seventy-fifth of the proceeds of the cruise; that he proceeded on the voyage and faithfully and with full an ordinary share of ability, performed the service for which he was engaged, and remained in the ship till the 21st of November, 1850, four years and within a few days of six months. It is also admitted that he then deserted, while the vessel lay at the Sandwich Islands, the voyage or cruise not being at the time completed. The cause or inducement to the desertion is proved by the libellant's own witness. Not long before that time the discovery had been made of the great mineral riches of California. The tempting prospect of sudden and easily acquired wealth was too strong for the young man, and he abandoned the ship for the purpose of seeking a fortune

« PreviousContinue »