United States v. De Goer

• Decision Date: 21 February 1889
• Citation: 38 F. 80
• Parties: UNITED STATES v. DE GOER. [1]
• Court: U.S. District Court — Southern District of New York

38 F. 80

UNITED STATES v. DE GOER. ^[1]

United States District Court, S.D. New York.

February 21, 1889

In 1861 and 1862 the defendant made five importations of gloves to this port, which were entered by him at the custom-house, and received for consumption. In August, 1862, a suit was commenced against him for the sum of $33,644.60, their value alleged to be forfeited to the government under section 66 of the act of 1799 (1 St.at Large, 677) for fraudulent under-valuation. Defendant appeared, but no answer was ever filed, and nothing further was done in the suit until after the death of the defendant, in March, 1877. In October, 1877 the United States attorney, in ignorance of the defendant's death, and upon affidavit of his default assessed the damages, and entered judgment for $68,229.55. On August 7, 1888, upon motion of the defendant's administrator, the judgment was set aside and vacated, as being irregularly entered after the defendant's death. A counter-motion for leave to enter the judgment nunc pro tunc as before his death, was denied. A writ of scire facias was thereupon issued, directing the administrator to show cause why the suit should not be revived against him as administrator of the deceased defendant.

Stephen A. Walker, U.S. Atty., and Abram J. Rose, Asst. U.S. Atty.

Griswold, Deuel & Griswold, for the administrator.

BROWN J., (after stating the facts as above.)

This action is for the forfeiture of the value of gloves imported by the deceased, for alleged fraudulent under-valuation. Section 66 of the act of 1799 (1 St.at Large, 677) provides that if goods imported and entered are not 'invoiced according to the actual cost thereof, * * * with design to evade the duties thereupon, or any part thereof, all such goods, * * * or the value thereof, to be recovered of the person making entry, shall be forfeited. ' By section 91 of the same act (page 697) the amount of the forfeiture so recovered, after deducting costs and charges, is to be distributed, one-half to the use of the United States, and the other half to the collector, naval officer, surveyor, and informer. The declaration, filed October 4, 1862, alleges the importation and entry of the gloves by the defendant; that the goods in the several invoices thereof 'were not, nor was any part thereof, invoiced according to the actual cost thereof, but at a much less price, with the design on the defendant's part to evade some part of the duties due and payable on such goods;' and that the goods were worth in the aggregate $33,644.60, for which judgment was demanded.

The action manifestly belongs to the general class of actions for the recovery of penalties and forfeitures. As such, under the early maxim of the common law, it would die with the person,-- actio personalis moritur cum persona. The statute of 4 Edw.III.,C. 7, called the statute de bonis asportatis in vita testatoris, greatly limited the effect of this maxim, and gave actions to executors for trespass to their testators' goods and chattels. In many, if not all, of the states of the United States, there are also additional statutes that very much limit the application of the old common-law rule. By the statute of Massachusetts actions survive for damage done to the real or personal estate; by the statute of New York (2 Rev.St.p. *448, § 1) actions survive 'for wrongs done to the property, rights, or interests of another, for which an action might be maintained against a wrong-doer. ' Under these statutes it is held that negligent injuries to a wife, who was a passenger on the cars, which caused expense and loss of her services, was a wrong to the husband's rights and interests, which survived, (Cregin v. Railroad Co., 75 N.Y. 192; see, also, Norton v. Sewall, 106 Mass. 143;) so, an action for fraud by the grantor on the sale of land, (Haight v. Hayt, 19 N.Y. 464; Cheney v. Gleason, 125 Mass. 166;) but actions for penalties not based upon the theory of affording compensation to the injured parties for damages sustained, do not survive, (Stokes v. Stickney, 96 N.Y. 323;) nor for special damage through a libel, (Cummings v. Bird, 115 Mass. 346;) nor an action for breach of promise of marriage, (Wade v. Kalbfleisch, 58 N.Y. 282; see 22 Amer.Law Reg. 353, 425.)

There is no statute of the United States providing what causes of action shall or shall not survive. Section 955, Rev. St. U.S., merely provides for the course of procedure 'in case the cause of action survives. ' The question here is to be determined, therefore, according to the nature of the cause of action, and the law that governs it. In those causes of action that arise under the state laws, or are subject to their operation, the law of the state will determine the question; in other cases it must be determined by the principles of the common law, as recognized and administered in the federal courts. The case of Hatfield v. Bushnell, 1 Blatchf. 393, was a case of the former class, where the action was ejectment to recover lands claimed by an alien; and, as it arose in Vermont, and was subject to the law of that state, it was held to survive, in accordance with the provisions of the state law. But causes of action arising out of the revenue laws of the United States, or, like the present, founded solely upon federal statutes, are manifestly not subject to the state legislation. The question is not one of the form or mode of procedure in enforcing a right, but of the existence of the right itself, after the defendant's death. Upon these grounds it was held in the case of Schreiber v. Sharpless, 17 F. 589, 110 U.S. 76, 3 S.Ct. 423, which was an action brought under section 4965 of the Revised Statutes to recover certain sums 'forfeited' by defendant for copying and printing plaintiff's copyright photograph, that the statute of Pennsylvania, where the cause of action arose, had no application; and that under the federal law the cause of action abated by the defendant's death, and could not be revived. The revival of the action in this case cannot, therefore, be based upon the provisions of the statute of New York.

Independently of the state statutes, a distinction is recognized at common law between cases where...