23 U.S. 246 (1825), U.s. v. Morris

Citation:23 U.S. 246, 6 L.Ed. 314
Party Name:The UNITED STATES v. MORRIS, Marshal of the Southern District of New-York.
Case Date:March 16, 1825
Court:United States Supreme Court

Page 246

23 U.S. 246 (1825)

6 L.Ed. 314

The UNITED STATES

v.

MORRIS, Marshal of the Southern District of New-York.

United States Supreme Court.

March 16, 1825

[REMISSION OF FORFEITURE. PLEADING.]

ERROR to the Circuit Court for the Southern District of New-York.

This was an action brought against the defendant, in the Court below, as Marshal of the Southern District of New-York, for a misfeasance in neglecting to proceed on a venditioni exponas issued out of the District Court of the United States for the District of Maine, requiring him to sell the goods and chattels of Andrew Ogden, Abraham K. Smedes, and Thomas C. Butler, which he had levied upon by virtue of certain executions issued against them, in favour of the United States, on a judgment recovered in the said District Court of Maine, and which goods and chattels remained in his hands for want

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of buyers, according to his return on said executions. The misconduct, or neglect of duty, alleged against the Marshal, was, that he did not sell the property so levied upon, according to the command of the writ, but delivered the same up to the defendants, discharged from the execution. The declaration stated the judgment to have been recovered in the September term of the Court, in the year 1817, for 22,361 dollars 75 cents, damages, and which, in part, to wit, in the sum of 11,180 dollars 87 cents, remained in full force, not reversed, paid off, or satisfied, to the plaintiffs, and that execution to that amount remains to be done. The venditioni exponas, as was alleged, was put into the hands of the Marshal on the 13th day of August, 1819.

The pleadings in the cause show, that Andrew Ogden, of the city of New-York, in or about the month of June, in the year 1813, imported into Portland, in the District of Maine, certain goods and merchandise in the brig Hollen, which vessel, as well as the goods, belonged to him. These goods, together with the brig, were thereupon seized as forfeited to the United States, on the ground that the goods had been imported in that vessel, in violation of the non-intercourse acts, then in existence. The goods and vessel were libelled in the District Court of Maine, on the 6th of July, 1813, and on the 19th of the same month were delivered up to Andrew Ogden, after having been regularly appraised, upon his having executed, together with Abraham K. Smedes, and Thomas C. Butler, a bond for their appraised

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value. The vessel and goods were, afterwards, on the 27th of May, 1817, condemned as forfeited to the use of the United States. And such proceedings were thereupon had, that, in the following September term of the Court, a judgment was entered upon the bond of appraisement for 22,361 dollars 75 cents, with costs.

The defendant, Morris, pleaded the general issue, and a special plea in justification, that the forfeitures had been remitted by the Secretary of the Treasury, setting out in haec verba, two warrants of remission, which were duly served upon him before the return day of the venditioni exponas, and averring a compliance on the part of the defendants, with all the terms and conditions required by the warrants of remission. All which were duly set forth in the return on the venditioni exponas, before the commencement of the present suit.

To this special plea, a replication was filed, stating, in substance, that at the time of the forfeiture, seizure, and condemnation, of the brig Hollen, and the goods imported in her; and, also, at the time of their condemnation, and the entering up of the judgment on the bond for their appraised value, and of the issuing of the several writs of execution, and at the time of the making and issuing the said warrants of remission, and of the service thereof on the defendant, &c. Isaac Ilsley, and James C. Jewett, were the collector and surveyor of the port of Portland, and, as such; entitled to one half of the said forfeiture; and that the said several executions

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were issued for their benefit, and solely to collect the said sum of 11,180 dollars 87 cents, for their own separate use, and that the defendant had notice thereof when the said several writs of execution were delivered to him to be executed; setting out, also, two endorsements on the execution, one signed by the District Attorney of Maine, notifying the defendant, that the execution was for the benefit of the said Collector and Surveyor, and directing the Marshal to collect the same by their order. The other was signed by the Collector and Surveyor, requiring the Marshal to collect the execution forthwith, and deposit the money agreeably to the command of the writ, and notifying him, that the property in the execution was in them, and directing him to receive orders from them, and from no other person whatsoever, in whatever related to the said execution. And it was then averred, that the present suit was for the purpose of enabling the Collector and Surveyor to recover their damages for the injury they had sustained by reason of the misfeasance of the defendant, in the declaration mentioned, and not for the benefit, use, or behoof, of the said plaintiffs.

To this replication the defendant demurred specially, and stated the following causes of demurrer: (1.) For that the replication is a departure from the declaration, in this, that the declaration proceeds upon a cause of action in favour of the United States; whereas the replication proceeds upon a cause of action in favour of the said Ilsley and Jewett, &c. (2.) For that the

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replication discloses no lawful and sufficient authority for the said I. and J., to prosecute the said action against the said T. M., &c., and in the name of the United States. (3.) For that the declaration proceeds upon the ground, that the several writs of execution therein respectively mentioned, were issued upon a judgment obtained for the use of the United States, and, therefore, according to the act in such case made, &c., might lawfully run and be executed in any other State or territory of the United States, than the said District of Maine, in which the said judgment was obtained. Whereas the replication discloses the fact, that the said judgment was not obtained for the use of the said United States, but for the use and benefit of the said I. and J., and, therefore, could not run and be executed in any other State, &c. (4.) That the suit is prosecuted in the name of the United States, by an attorney, on record, other than the District Attorney of the United States for the Southern District of New-York.

A joinder in demurrer having been filed, judgment was given for the defendant in the Court below, and the cause brought by writ of error to this Court.

On the part of the plaintiff in error, it was contended, that the judgment ought to be reversed,

1. Because the Secretary of the Treasury had no power to remit the share of the forfeiture which belonged to the custom-house officers.

2. Because the action was rightly brought in the name of the United States, by an attorney of

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the Court below, specially authorized to prosecute the suit by an order of one of the Judges of that Court.

3. Because the replication is not a departure from the declaration, proceeding upon a different cause of action from that stated in the declaration.

Mr. Wheaton, for the plaintiffs in error, stated the principal question in the cause to be, whether, after a definitive sentence of condemnation, in a revenue cause, the Secretary of the Treasury has a right, under the Remission Act of the 3d of March, 1797, c. 361. [lxvii.] [a]to remit the forfeiture so as

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to affect the right of the officers of the customs, under the Collection Act of 1799, c. 128. [cxxviii.] ss. 89. and 91., [b]to a moiety of the fines, penalties,

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and forfeitures, recovered under the act. He insisted, that the right of the Collector, &c. accruing by the seizure, was consummated by the final sentence of condemnation, and became an absolutely vested right, which could not be devested by the remission after such sentence. This had been expressly determined in the Circuit Court for the First Circuit; [c]and though the case had not hitherto been presented to this Court, there were other analogous cases which settled the doctrine, that, as between the representatives of a deceased Collector, and his successor in office, or as between a removed Collector and such successor, the share of the forfeiture to which he is entitled attaches, and is consummated by the sentence of condemnation. [d]This went upon the principle, that it became an absolutely vested right, by relation back to the time of seizure. If it were an absolutely vested right, it must be vested as against the government. It is not vested, even as against the government, at the time of the seizure. That only gives an inchoate right, which may never become absolute for want of a condemnation, or may be intercepted by a remission before condemnation. The

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forfeiture has, for certain purposes, relation back to the commission of the offence. As between the offender and all persons claiming as purchasers of the property, and the government, the forfeiture attaches at the moment of delictum. [e]But this proceeds from the necessary strictness of all fiscal regulations, and does not prevent a remission before condemnation. The delictum does, indeed, devest the proprietary interest from the owner, so as to overreach the claims of subsequent purchasers; but it does not, therefore, follow, that the share to which the officers of the customs may become entitled, vests in them eo instanti. Their title may never vest, by reason of three contingencies: (1.) There may be no seizure. (2.) There may be a remission after the offence, and before condemnation. (3.) There may be no condemnation. If there be no seizure, of course no title vests. If there be a remission before...

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