Barlow v. United States.

back to the 84th section of the act of 1799, as one then operative in its fullest extent on all subjects of drawback. And the circumstances of this case abundantly establish, that such has been the practical construction of these acts by the government, as well as of the custom-house department. We think, then, that this objection cannot be sustained.

The next question is, whether the sugars were in this case entered by a false denomination. They were entered by the name of "refined sugars." They were, in fact, sugars known by the appellation of bastar, or bastard sugars, which are a species of sugar of a very inferior quality, of less value than the raw material; they are the residuum or refuse of clayed sugars, left in the process of refining, after taking away the loaf and lump sugar, which results from that process. The question is, whether this species of sugar is, in the sense of the acts of congress, "refined sugar." These acts allow a drawback "on sugar refined within the United States."

It has been contended in argument, that all sugars which have undergone the full process of refining, after they have arrived at the point of granulation, are properly to be deemed refined sugars, whether they have been clayed or not. In a certain sense, they may certainly be then deemed to be refined; that is, in the sense of being then clarified and freed from their feculence. But the question is, whether this is the sense in which the. words are used in the acts of congress.

The acts of congress on this subject, are regulations of commerce and revenue; and there is no attempt in any of them to define the distinguishing qualities of any of the commodities which are mentioned therein. Congress must be presumed to use the words in their known and habitual commercial sense; *not indeed, in that of foreign countries, if it should differ from our own, but in that known in our own trade, foreign and [*410 domestic. If, in a loose signification among refiners, sugars should sometimes be spoken of as being refined, without having undergone the further process of claying; or if the whole mass resulting from that process should sometimes indiscriminately acquire among them that appellation, in a like loose signification; still, if among buyers and sellers generally, in the course of trade and business, the appellation "refined sugars," is exclusively limited to the products called lump and loaf sugar, and never includes bastard sugar, the acts of congress ought to be construed in this restrictive sense, as they peculiarly belong to commerce. This was the doctrine of this court asserted in the case of Two Hundred Chests of Tea, 9 Wheat. 438, 439; and there is not the slightest inclination on the part of this court to retract it. Now, without minutely sifting the evidence in this case, we think, that there is a decisive and unequivocal preponderance of evidence to establish, that bastard sugar is not deemed, in a commercial sense, "refined sugar." The appellation is exclusively limited to such as have assumed, at some time, the form of white refined loaf or lump sugars. This is established, not merely by the testimony of merchants and grocers, and persons in the custom-house, but by the testimony of sugar-refiners. A sale of refined sugars would be deemed by them not complied with, by a delivery of bast ard sugars. If this be so, it puts an end to the question, whether the sugars in controversy were entered by a false denomination.

If they were entered by a false denomination, then they are subject to forfeiture, unless the party can bring himself within the exceptions of the

7 PET.-17

257

Barlow v. United States.

proviso of the 84th section. And here the onis probandi rests on him to extract the case from the penal consequences of an infraction of the law. Were these sugars entered by a false denomination, happening by mistake or accident, and not from any intention to defraud the revenue? There was no accident in the case; there was no mistake in point of fact; for the party knew what the article was, when he entered it. The only mistake, if there has been *any, is a mistake of law. The party in the present *411] case has acted, indeed, with his eyes open; against the known construction given to the acts by the government and the officers of the customs. He has not been misled; and his conduct in the course of making the shipment, if it be entirely compatible with good faith, is not wholly free from the suspicion of an intention to overreach, and evade the vigilance of the custom-house department. He has made every effort in his power to obtain the drawback, by passing off, as refined sugars, what he well knew were not admitted to be such by the higher government officers.

But we do not wish to put this case upon any ground of this sort. It presents the broader question, whether a mistake of law will excuse a forfeiture, in cases of this description. We think, it will not. The whole course of the jurisprudence, criminal as well as civil, of the common law, points to a different conclusion. It is a common maxim, familiar to all minds, that ignorance of the law will not excuse any person, either civilly or criminally; and it results from the extreme difficulty of ascertaining what is, bona fide, the interpretation of the party; and the extreme danger of allowing such excuses to be set up for illegal acts, to the detriment of the public. There is scarcely any law, which does not admit of some ingenious doubt; and there would be perpetual temptations to violations of the laws, if men were not put upon extreme vigilance to avoid them. There is not the least reason to suppose, that the legislature, in this enactment, had any intention to supersede the common principle. The safety of the revenue, so vital to the government, is essentially dependent upon upholding it. For mistakes of fact, the legislature might properly indulge a benignant policy, as they certainly ought, to accidents. The very association of mistake and accident, in this connection, furnishes a strong ground to presume, that the legislature had the same classes of cases in view; accident, which no prudence could foresee or guard against, and mistakes of fact, consistent with entire innocence of intention. They may both be said, in a correct sense, to happen. Mistakes in the construction of the law, seems as little intended to be excepted *by the proviso, as accidents in the construc*412] tion of the law. Without going more at large into the circumstances of the case, it is the opinion of the court, that the judgment of the circuit court ought to be affirmed, with costs.

THIS cause came on to be heard, on the transcript of the record from the circuit court of the United States for the southern district of New York, and was argued by counsel: On consideration whereof, it is ordered, adjudged and decreed by this court, that the decree of the said circuit court in this cause be and the same is hereby affirmed, with costs.

258

*JAMES W. BREEDLOVE and WILLIAM R. ROBESON, Plaintiffs in error, v. THEODOR NICOLET and J. J. SIGG.

Jurisdiction.- Practice of Louisiana.—Joint and several contract. Names of parties.—Aliens.—Error.-Matters of discretion.

Insolvency.

The plaintiffs, aliens, were residents of the state of Louisiana, at the time of the execution of the note sued on, in the district court of the United States for the eastern district of Louisiana, and continued to reside in New Orleans since, having a commercial house there; they were, however, absent six months in the year; but when absent, had their agent to attend to their business; the defendants in the suit were residents of the city of New Orleans, and citizens of the state of Louisiana, when the note was given. The residence of aliens within the state constitutes no objection to the jurisdiction of the federal court.

The commercial partnership, the makers of the note upon which the suit was instituted, was composed of three persons, one of whom was a resident citizen of Alabama, and out of the jurisdiction of the court, when the suit was brought, and the remaining two, the defendants, were resident citizens of Louisiana: Held, that although the suit being against two of the three obligors might not be sustained at common law; yet as the courts of Louisiana do not proceed according to the rules of the common law, their code being founded on the civil law, this suit was properly brought.

The note being a commercial contract, is what the law of Louisiana denominates a contract in solido; by which each party is bound severally as well as jointly, and may be sued severally as well as jointly.

The plaintiff Sigg was denominated in the petition and writ "J. J. Sigg;" the omission of his Christian name at full length was alleged as error. He may have had no Christian name; he may have assumed the letters "J. J." as distinguishing him from other persons of the name of Sigg. Objections to the name of the plaintiff cannot be taken advantage of, after judgment; if J. J. Sigg was not the person to whom the promise was made; was not the partner of Theodor Nicolet & Co.; advantage should have been taken of it sooner; it is too late to allege it as error, in this court.

The petitioners averred that they were aliens. This averment is not contradicted on the record, and the court cannot presume that they are citizens.

If originally aliens, they did not cease to be so, nor lose their right to sue in the federal court, by a residence in Louisiana; neither the constitution nor the acts of congress require that aliens should reside abroad, to entitle them to sue in the courts of the United States.

The suit not having been brought against Bedford, one of the partnership, it was not necessary to aver, that he was subject to the jurisdiction of the courts of the United States. After issue joined in the district court, the defendants filed a plea, that the firm of Theodor Nicolet & Company, the plaintiffs, consisted of other *persons, in addition to those [*414 named in the writ and petition, and that those other persons were citizens of Louisiana; the court, after receiving the plea, directed that it be taken from the files of the court: Held, that this was a proceeding in the discretion of the court; and was not assignable as error, in this court.

The plea was offered after issue was joined on a plea in bar, and the argument of the cause had commenced. The court might admit it; and the court might also reject it; it was in the discretion of the court to allow or refuse this additional plea: as it did not go into the merits of the case, the court would undoubtedly have acted right in rejecting it.

All the proceedings in a case are supposed to be within the control of the court, while they are in paper, and before a jury is sworn, or judgment given; orders made may be revised, and such as in the judgment of the court may have been irregular or improperly made, may be set aside. Construction of the insolvent laws of Louisiana.

ERROR to the District Court for the Eastern District of Louisiana. This action was instituted in the district court, by Theodor Nicolet and J. J. Sigg, both averred to be aliens, and citizens and subjects of the republic of Switzerland, but at present residing and trading in the city of New Orleans, under the firm and style of Theodor Nicolet & Co.

Breedlove v. Nicolet.

The petition of the plaintiffs set out a joint and several demand against J. R. Bedford, James W. Breedlove and William L. Robeson, formerly partners in trade, and doing business in the said city, under the firm and style of Bedford, Breedlove & Robeson. The cause of action was a promissory note, subscribed by Bedford, Breedlove & Robeson, for $2964.10, dated at New Orleans, 22d November 1826, payable sixty days after date, to the order of the petitioners. The petition then averred, that said Bedford, Breedlove & Robeson had become indebted to the petitioners in the amount of said note, with interest and costs. It further averred, that Breedlove and Robeson were citizens of the state of Louisiana, and resided in New Orleans, and that each of them were liable, as aforesaid; and prayed that Breedlove and Robeson might be cited, and that judgment be rendered against them, jointly and severally, for the amount due. Attached to the petition was an affidavit, setting forth that Breedlove and Robeson were jointly and severally indebted, &c. Two separate writs of capias ad respondendum were issued, the one against Robeson, the other *415] against Breedlove, upon which they were severally arrested and held to bail, under a special order of the judge.

In June 1829, the defendants filed their joint and separate answer to the petition, in which, reserving all legal exceptions, they averred, that the said commercial house of Bedford, Breedlove & Robeson, of which they were partners, having become embarrassed by misfortunes, after the execution of the note sued on, to wit, March 16th, 1827, made out a full and complete schedule, exhibiting the debts due by them, and the property and debts belonging and due to them, jointly and severally, which said property was duly accepted by the judge of the parish court, for the benefit of the creditors placed upon said schedule. Among their creditors were the plaintiffs, Theodor Nicolet & Co., then residents of New Orleans, in the state of Louisiana, and who were also residents of the same place, at the time of the execution of the note sued on. After the said acceptance so made by said parish judge, a meeting of the creditors of Bedford, Breedlove & Robeson was duly called. At the appointed time and place, the creditors who assembled approved of the acceptance of the property made by the judge as aforesaid. Upon these proceedings, judgment of discharge was finally rendered in favor of the defendants.

Afterwards, the original note was filed, to wit, January 4th, 1830, and on the following day, viz., January 5th, 1830, the defendants filed a plea to the jurisdiction. In this plea, after setting out the note, they alleged that the district court could not properly exercise jurisdiction over the case, because they alleged, that said note was drawn by Bedford, Breedlove & Robeson, payable to the order of T. Nicolet & Co., who indorsed and assigned the same to one Frederick Beckman, who indorsed and assigned the same to J. J. Sigg, who assigned the same to Theodor Nicolet & Co., the present plaintiffs. The defendants then averred that the said firm of T. Nicolet & Co., was composed of various other persons than the said Theodor Nicolet and J. J. Sigg; that, among the *partners in said firm one *416] Germain Mussen, and one M. P. Durell, and one Charles Lessept, all and each of whom were citizens of the United States, and state of Louisiana. Further, they averred, that Frederick Beckman, a remote indorser on said note, was, prior to the 5th July 1828, and at the time of his transfer to

Breedlove v. Nicolet.

J. J. Sigg, an alien, and a subject of the Hanseatic Towns; that on the 5th July 1828, he became a citizen of the United States, and state of Louisiana, and was so at the time of the institution of this suit, &c. This plea was filed on the 5th of January, after the hearing of the cause had been commenced, and the objection of the petitioner's counsel against then receiving it, was overruled.

On the 20th May 1830, on motion to reconsider and annul the order of January, which permitted the defendants to file the plea to the jurisdiction, it was objected, that it came too late, the cause having been put upon the jury calendar, and regularly called on that calendar for trial. The court rescinded the order: 1st, Because it was not filed in time; the defendants having pleaded to the merits, before oyer was given of the note; and upon this plea, the cause was at issue, when the plea to the jurisdiction was filed. 2d. Oyer of the note was not necessary to enable a party to plead in abatement the citizenship of the plaintiffs; that both branches of the plea to the jurisdiction denied the capacity of the plaintiffs to sue, and therefore, ought to have been pleaded in abatement, and before issue joined on the merits; and that no material step was taken in the cause, between the reception of said plea and its subsequent rejection, on reconsideration.

On June 7th, 1830, the cause came on for trial, when the following facts were admitted on the record: That the persons, composing the firm of T. Nicolet & Co., were residents of the state, at the time of the execution of the note sued, and had continued so up to that time; that they are absent about six months in the year; but, when so absent, had their agents to attend their business, and their commercial house had existed in New Orleans ever since the execution of said note; that Breedlove and Robeson were residents of the city of New Orleans, and citizens of the state of Louisiana. *The proceedings under the insolvent law of Louisiana were admitted in evidence. The plaintiffs filed the protest of the [*417

note, which appeared to have been made November 22d, 1827, at the instance of Frederick Beckman.

On the 10th of June 1830, judgment was entered for the following terms: The court having maturely considered this case, now order and adjudge, that judgment be entered up in favor of the plaintiffs against the defendants, jointly and severelly, for the sum of $2964.10, with interest at the rate of five per cent. per annum, from the 24th day of January 1827, until paid, and costs of suit. To reverse this judgment, the defendants prosecuted this writ of error.

The case was argued by Coxe, for the plaintiffs in error; and by Livingston, in a printed argument, for the defendants.

Coxe contended, that the judgment of the district court was erroneous, and ought ty be reversed. 1. Because the action was irregularly instituted, no process having been sued out against Bedford, one of the partners, and the suit being a joint as well as a several one. 2. Because neither in the petition, writ, nor in any part of the proceedings, is the Christian name of Sigg set forth; which is essential. 3. Because there is no evidence that the petitioners were aliens, and, as such, authorized to sue in the courts of the United States; but the only facts in the case which can be judicially recognised, show them to have been, at the date of the note, and still continue,