The United States v. Henry Maillard and Oscar Mussinan. being the laws named in that section. But I think the object of the passage of the 14th section of the Act of 1863 was, among other things, to make it clear that the limitation on the commencement of suits for the recovery of fines, penalties, and forfeitures incurred by reason of the violation of the customs laws should fall under the 4th section of the Act of 1839, and be subject to the restrictive proviso to that section, and not be an unrestricted limitation, as in the Acts of 1799 and 1804. Hence, the absolute limitations prescribed as to such suits by the Acts of 1799 and 1804 were repealed, leaving in force, as to such suits, the restricted and qualified limitation provided for by the 4th section of the Act of 1839. It results, therefore, that actions and proceedings for the recovery of fines, penalties, and forfeitures incurred by reason of the violation of any law of the United States relating to the importation or entry of goods, wares, or merchandise, are subject to the limitation prescribed by the 4th section of the Act of 1839, under the conditions of the proviso to that section. I find my views on this question confirmed by the opinion of the District Judge for the Eastern District of Michigan, in the case of In re Landsberg, in May, 1870, (11 Internal Revenue Record, 150.) It is urged, that the United States are not embraced within the 4th section of the Act of 1839, because not expressly named therein; that to bind them by the limitation of that section would bar them of a right, and would violate the principle of public policy, that the Government is not to be prejudiced by the negligence of public officers to whose care the public interests are confided; and that it is a settled principle that the Government is never barred by an Act of limitation, unless named. (United States v. Knight, 14 Peters, 301, 315.) Without going into a detailed examination of the legislation of Congress on the subject of fines, penalties and forfeitures, it is sufficient to say, that the course of it has The United States v. Henry Maillard and Oscar Mussinan. been such as to show, that wherever fines, penalties and forfeitures generally, accruing under the laws of the United States, are spoken of, those accruing to the United States are intended to be included, unless they are specially excepted. This consideration, in connection with the language of the 4th section of the Act of 1839, shows an intent to include the United States within that section, and no intent is shown to exclude them. The section speaks of prosecutions for penalties and forfeitures other than pecuniary, and also of the person of the "offender," language which would scarcely have been used if the United States were not intended to be embraced within the purview of the section. The three causes of action referred to in the demurrer to the second plea being for forfeitures incurred by the violation of a law of the United States relating to the importation and entry of merchandise, the second plea is, therefore, a good plea to such three causes of action, and the demurrer to it must be overruled. The replication to the plea of the statute of limitations, so far as it relates to all the causes of action except the three named in the demurrer to such plea, is based on the view, that a fraudulent concealment by the defendants, from the plaintiffs, of the acts set forth in such causes of action, until within five years prior to the commencement of the suit, whereby the same were unknown to the plaintiffs until within a period of less than five years next prior to the commencement of the suit, bars the running of the statute. It is well settled, that, however strong the reason may be, a Court cannot engraft on a statute of limitations an exception which 'the statute itself does not make. (McIver v. Ragan, 2 Wheaton, 25; Bank of the State of Alabama v. Dalton, 9 Howard, 522; The Sam Slick, 2 Curtis' C. C. R., 480, 485.) So, also, the clear weight of authority, at least in the State of New York, is, that where the statute does not make a fraudulent concealment of the existence of VOL. IX.-30. The United States v. Henry Maillard and Oscar Mussinan. the cause of action an exception to the running of the statute, the Court has no right or power to make such exception, either directly, or by the indirect method of, saying that the cause of action does not accrue, in case of a fraudulent concealment, until the discovery of the fraud. (Troup v. Smith's Exrs., 20 Johns., 33; Leonard v. Pitney, 5 Wendell, 30; Allen v. Mille, 17 Wendell, 202; Humbert v. Trinity Church, 24 Wendell, 587.) It is true, that Mr. Justice Story, in Sherwood v. Sutton (5 Mason, 143, 152,) dissents from the decision in 20 Johnson, but I cannot but regard the making by the Court of an exception, in a case of fraudulent concealment, when the statute does not make it, as violating the rule settled by the Supreme Court, as before stated. Especially must this be so where the statute has, as in the 4th section of the Act of 1839, specified, in a proviso, declared exceptions. But it is further urged, that, although, ordinarily, simple fraudulent concealment may not prevent the running of the statute, yet the statute did not begin to run in this case until the offence became known to the Government, for the reason that, under the 66th section of the Act of 1799, the Government has the option to take a forfeiture of the goods or a forfeiture of their value, and that it cannot exercise such option or bring a suit until it knows of the violation of law. Another form of the argument is, that the forfeiture did not take place until the option was exercised; that the option was not exercised until the suit was brought; that, therefore, the forfeiture did not accrue till the suit was brought; and that, consequently, the statute did not begin to run till the suit was brought. The answer to these views is, that, if they were to prevail, they would require the Court to admit fraudulent concealment as an exception to the running of the limitation, as well where there was no option to be exercised, as where there was the privilege of exercising an option. No suit can be brought in The United States v. Henry Maillard and Oscar Mussinan. any case until the violation of law is known. Whether there is an option to be exercised or not, as to the kind of suit to be brought, can make no difference, if the right to bring the suit that is brought, that is, the cause of action, or, in the language of the 4th section of the Act of 1839, the "forfeiture," accrued when the offence was committed. It did so accrue, as against the defendants in this case, when the offences alleged were committed. Ignorance of the right to exercise the option can be of no more avail to constitute an exception to the statute, than ignorance of the right to bring any suit at all, or ignorance of the existence of the offence. Such ignorance does not prevent the running of the statute or the accruing of the forfeiture sued for, as respects the thing or person sued, as between it or him and the United States. This view is not in conflict with the decision in the case of Caldwell v. United States, (8 Howard, 366.) The question there involved was, whether, in case of a violation of the 66th section of the Act of 1799, goods undervalued in the entry, with design to evade the duties thereon, became forfeited to the United States, under that section, eo instanti, on the false entry, so as to avoid a sale of them between that time. and the time of their seizure, to a bona fide purchaser or one altogether ignorant of the fraud, and in no way connected with the perpetrator of it, except in buying the goods from him at a fair price. The Court held, that, as, under the 66th section, the forfeiture was of the goods or their value, the forfeiture of the goods did not, by the commission of the offence, become so fixed as to vest the title to them in the United States eo instanti, as against a bona fide purchaser of them, who acquired his title before the United States, by seizing the goods, exercised the privilege of election conferred on it by that section. The same doctrine had been previously held in United States v. Grundy, (3 Cranch, 338.) But that was a very different question from the one involved In the Matter of Jacob Wielarski, a Bankrupt. in this case. There is no question here of the vesting of the title to goods as against a bona fide purchaser, but a question of the fact of the commission of an offence, and of the creation thereby of a right to bring a suit therefor in one form or another. I am entirely satisfied that the replication is bad in substance. The demurrer to it is, therefore, sustained. Noah Davis (District Attorney) and William Stanley, for the United States. Sidney Webster, for the defendants. JANUARY, 1871. IN THE MATTER OF JACOB WIELARSKI, A BANKRUPT. PENDENCY OF PREVIOUS PROCEEDINGS. STAY. If a bankrupt files two petitions, setting forth the same debts, and the first one is still pending, proceedings under the second one will be stayed. In December, 1868, the bankrupt filed his petition, and was adjudged a bankrupt, and an assignee was appointed. That proceeding being still pending, the bankrupt filed another petition, in December, 1870, setting forth the same debts, which was referred to a different Register. At the first meeting of creditors, a creditor appeared and objected to any action during the pendency of the previous proceedings. The Register was of |