1833]

United States v. 84 Boxes of Sugar.

trary only settling a doubt, and at most establishing an error of judgment and not a wilful deception: no presumption of fraudulent representation necessarily arises from showing a specification of an entry to be incorrect, in regard to the commercial character or designation of an article, when that incident of the article is speculative, or may be variously interpreted; or when, at all events, as in this case, it is variously defined by the opinions and experience of commercial witnesses.

Taney, Attorney-General, contended, that the opinion of the district judge of Louisiana, in condemning the sugars, and refusing the appeal, was

correct.

MCLEAN, Justice, delivered the opinion of the court.-This case is brought before the court, by an application for a mandamus, to be directed to the judge of the court of the United States for the district of Louisiana, requiring him to allow an appeal from the judgment of that court.

[*459 *In their petition, the claimants state, that the eighty-four boxes of sugar were consigned to them at New Orleans, and that on their arrival, they were libelled by the United States for an alleged breach of the revenue laws; that the sugars were valued by the two custom-house appraisers at $2602.51; that they were afterwards condemned and sold by the marshal, at public sale, for $2338.48, leaving $2150.06, after deducting the costs and charges of the sale. From the judgment of condemnation, the claimants prayed an appeal to the supreme court; which was refused, on the ground, that the value of the sugars, exclusive of duties, is less than $2000. By consent of parties, if the claimants shall, in the judgment of this court, be entitled to an appeal, the merits of the case shall be considered as regularly before the court, for a final decision.

Whether the claimants were entitled to an appeal, is the first point to be considered. The decision of this question depends on the amount in controversy. If it be less than $2000, the judgment of the district court was final, and cannot be revised by an appeal. The judgment of condemnation was entered on the 9th of April 1831, and on the 28th of the same month, under the order of the court, the marshal sold the property. On the 19th of April, an appeal was prayed, and an order was made, that the districtattorney should show cause on the 23d of the same month, why an appeal should not be granted.

In his opinion against the right of the claimants to an appeal, the district judge says, that "the supreme court has lately, in the case of Gordon v. Ogden, decided, that the defendant cannot support an appeal, from a judgment obtained against him in the court below for a less sum than $2000, because that judgment is the only matter in dispute." "In this case," the judge says, "the thing demanded on one side was the forfeiture of [*460 66 There a specific quantity of sugar, and *on the other the restoration of the same article, the value of which did not amount to $2000." was no demand of duties, nor could such demand have been taken into consideration in the case then before the court. There was no contest about the duties."

It will be observed, that at the time the judgment of condemnation was entered, and also when the appeal was prayed, the sugars remained in the

287

United States v. 84 Boxes of Sugar.

hands of the proper officer. Suppose, the judgment had been given for the restoration of the property, in what form should it have been entered? Could any part of the property have been detained for the payment of the duties? The duties were not then due, and could the court have directed them to be paid, by the sale of a part of the property? A judgment in favor of the complainants in the district court, should have directed the property to be restored to them, on the payment of the duties, or securing them to be paid, according to law. This would have given to the claimants the whole amount of their property, as though no seizure of it had been made. Under the law, they were entitled to a credit for the payment of the duties, on the condition of giving bond and security.

Does it not thus appear, that the whole of the property was the amount in dispute, and would have gone into the possession of the claimants, had the judgment of the court been in their favor? How then could it be said in the court below, that the duties must be deducted from the value of the sugars, as forming no part of the controversy; and that, by such deduction, the value of the property was reduced below the amount which entitles the claimants to an appeal? If the claimants had given bond for the payment of the duties, and a judgment of restoration had been entered by the court, before any part of the duties became payable, should the court bave directed them to be paid? Such an order, under such circumstances, would be oppressive and unjust. The duties having been secured to the government, as the law requires, no wrongful act on the part of the officers of the government, could lessen the term of credit fixed by the law and stated in the bond. And if no bond had been given, *because of the seizure of *461] the property, or its restoration, the claimants would have been at least entitled to credit for the unexpired term allowed by law for the pay. ment of the duties, on their giving the requisite bond and security.

The case must stand before this court on the appeal, as it stood before the district court, at the time the appeal was prayed. No subsequent action of the court, in the sale of the property, can affect the question. Before this court, therefore, the case must stand, on the judgment of condemnation; and this, before the duties were payable by law. Was not the entire property, and consequently, its full value, in dispute between the parties at the time judgment was entered? On the one side, a condemnation of the property is claimed, on the ground, that the revenue law has been violated; and on the other, a restoration of the property is demanded. In this view, this court think the right of appeal from the judgment of the district court was clear, as the value of the property in controversy exceeded $2000.

The next inquiry is, whether the sugars were entered for the payment of duties, under a false denomination, with a view to defraud the revenue? The sugars were entered as brown, on which a duty of three cents per pound is paid; and the libellants contend, that they should have been entered as white, on which a duty of four cents per pound is paid. The quality of the sugars can only be ascertained by a reference to the proof in the case. The witnesses differ in their opinion as to the quality of these sugars. Bertrand and Smelser, two of the custom-house officers, say the sugars were white; and their testimony is corroborated by five other witnesses. But a still greater number of witnesses, embracing the largest importers of sugars at New Orleans, are of the opinion, that the sugars

United States v. 84 Boxes of Sugar.

were properly denominated brown, by the importers. Some of the boxes appeared to be whiter than others, but by far the greater number, as it would seem from a majority of the witnesses, were brown.

J. W. Zacharie says, that he is engaged in the importation of Havana sugars, and that had he been ordered to purchase white sugar, he would not have purchased the sugars in question. That if he had entered these sugars as brown, for the *payment of duties, he would not have considered [*462 himself as practising a fraud on the government. A. Fiske states, that he knew sugar of superior quality imported as brown sugar, and that it is very difficult, beforehand, for an importer to know how his sugar will be classed. He says, when the qualities of superior brown and inferior white approximate, a very fair difference of opinion may exist as to the quality. Mr. Grant states, that he has had great experience in white Havana sugar, and after examining the samples of the sugars shown him, says that a majority of them are brown, though there may be a few boxes of white. He would not purchase them as white, on an order for sugar of that quality. A. R. Taylor and Joseph Cockayne state, substantially, the same facts as Mr. Grant. Mr. Suarez says, that a portion of the sugar shown him has been white, but being very old, it has become worse than brown, and that he would not purchase it as white sugar. He considers the entire lot brown. J. H. Shepherd states, substantially, the same facts.

It appears, that the planters in Havana mark their white sugars with the letter B, and that the mark for brown is Q; and it appears from the testimony of Bertrand, one of the custom-house officers, that he suspected a fraud was designed by the importers, as he discovered the marks on the boxes had been changed from B to Q. Two of the boxes had the letter B still on them. Whether these changes were made by the planter, or the importer, does not appear; but Fiske and other witnesses state that, the marks which are placed on sugars in Havana, depend very much on the fancy of the planters, and that they are sometimes marked B, with. the view of selling them higher. There does not appear to be anything in these marks which shows that a fraud was contemplated by the importers. Any such inference is rebutted by many respectable witnesses in the case, who state that the sugars are of the quality denominated in the entry.

The statute under which these sugars were seized and condemned is a highly penal law, and should, in conformity with the rule on the subject, be construed strictly. If, either through accident or mistake, the [*463 sugars were entered by a different denomination from what their quality required, a forfeiture is not incurred. Under all the circumstances of this case, the court think, that the evidence not only fails to convict the claimants of fraud, in the entry of these sugars, by a false denomination, but they think that the weight of testimony is in favor of the quality of the sugars, as stated in the entry. They, therefore, reverse the decree of the district court, and direct said court to enter a decree, that the proceeds of these sugars be restored to the complainants, if the duties shall have been paid; and if they shall not have been paid, as they are now due, that the restoration be of the balance of proceeds, after deducting the duties. The court think there was probable cause of seizure, and they direct the fact to be certified.

7 PET.-19

289

Tyrell v. Rountree.

ON consideration of the motion of the claimants, and of the arguments of counsel, as well for the United States as for the claimants, thereupon had, it is now here considered, ordered, adjudged and decreed by this court, that a writ of mandamus, as prayed for, be and the same is hereby awarded, directed to the judge of the district court of the United States, for the eastern district of Louisiana, ordering him to grant an appeal in the premises.

*464] *WILLIAM TYRELL'S HEIRS, Plaintiffs in error, v. ANDREW ROUNTREE and others.

Attachment.

On the 12th of February 1807, an attachment was regularly issued by the court of Williamson county, Tennessee, and was, on the 13th of the same month, levied on a tract of land, the property of the defendant in the suit; judgment by default was entered on the 15th of October 1807; the property was, on motion, condemned, and a writ of venditioni exponas issued on the 24th, which came into the hands of the sheriff on the 28th of October, who sold the property under it, on the 2d of January 1808; the county of Williamson was divided, on the 16th of November 1807, and that part of the land for which this ejectment was brought, lay in the new county, called Maury: Held, that the process of execution for the sale of the land, unde, which it was sold by the sheriff, was a direction to the sheriff to sell the specific property which was already in his possession, by virtue of the attachment, and was already condemned by the competent tribunal; the subsequent division of the county could not divest his vested interest, nor deprive the officer of the power to finish a process which was already begun. Tyrell v. Rountree, 1 McLean 95, affirmed.

ERROR to the Circuit Court of West Tennessee. An ejectment was brought by the plaintiffs in error, to September term 1830, in the circuit court of West Tennessee, for the recovery of a tract of land, which, in the lifetime of the ancestor of the plaintiffs, had been taken in execution, and sold by the sheriff, to satisfy a debt for which judgment had been obtained in Williamson county, in the state of Tennessee.

The suit was commenced by attachment, and the land for which this ejectment was instituted, was attached on the 13th of February 1807, the sheriff having made the following return to the writ of attachment: "Came to hand the 13th of February 1807, about nine o'clock, and levied immediately on an undivided half of 3840 acres of land, on both sides of Sugar creek," &c., being William Tyrell's right and interest therein. On the 15th of October 1807, the plaintiff obtained judgment for his debt, and on motion, the property attached was condemned, and a writ of venditioni exponas was ordered on *the same day. The writ was issued on the 24th of *465] October 1807, and the property was sold on the 2d of January 1808. The defendants in error derived their title under this sale.

On the trial of the ejectment in the circuit court, evidence was given, which proved, that, at the time the attachment was laid on the land, it was situated in Williamson county; and that on the 16th of November 1807, the legislature of Tennessee passed an act dividing the county of Williamson, and erecting part of the same into a separate county, denominated Maury county; and that a portion of the land in controversy was situated in Maury county, when the same was sold by the sheriff of the county of Williamson.

The counsel for the plaintiffs requested the court to charge, that, whether

Tyrell v. Rountree.

the said judgment of the court of pleas and quarter sessions of Williamson county was void or not, the sale under it was void as to that part of the land which was situated in the county of Maury, at the time of the sale; and that the sale and conveyance of the sheriff of the county of Williamson did not transfer that portion of the land. The charge of the court was, that neither the judgment nor the proceedings in Williamson county were void, for anything appearing, or not appearing, on the face of said judgment and the record thereof. The court also charged the jury, that, if a portion of the land in controversy was situated in the county of Maury, at the time of the sale thereof by the sheriff of Williamson, under the judg ment of Molloy's executors, yet that such sale was good, and vested the title in the purchasers, as the land was all situated in Williamson at the time of the levy, where public notice of the sale was given, until within a few days of the sale, and that the sale was good by relation to the levy. The counsel for the plaintiffs excepted to the charge of the court thus given, and a bill of exceptions was sealed by the court. Judgment having been rendered for the defendants, the plaintiffs prosecuted this writ of

error.

The case was argued by Coxe, for the plaintiffs in error; and by Bell, for the defendants.

*Coxe, for the plaintiffs, contended, that after the division of the [*466 county, by the act of the legislature of Tennessee, in which act there was no saving clause as to the matter before the court, all the right of the sheriff of Williamson county to sell that part of the land which fell within the county of Maury, terminated. The sheriff does not take possession of the land against which the process of execution issues, and under a writ of venditioni exponas, he sells no more than the right and interest of the defendant in the same. He cannot deliver possession of the property he sells to the purchaser. This shows that the sheriff has but a naked power to sell, under the lien of the plaintiff, which he has acquired by his judgment; and that it is co-extensive, and no more, with the limits of the county in which he can exercise the authority of a sheriff. As soon as any part of the property of the defendant is by law separated from the county of which he is the sheriff, all his authority to dispose of the rights over it, acquired by the plaintiff in the judgment, is at an end.

By the laws of Tennessee of 1794, a judgment is a lien on all the lands of the defendant in the state, and execution may issue from the court in which the judgment is obtained, to the sheriff of the particular county in which the land of the defendant may be situated. As, therefore, the lien of the plaintiff in the suit, under which the land in controversy in this case was sold, was not affected by the division of the county, the plaintiff might have had process of execution to the sheriff of Maury county, and have thus sold the land of the defendant. Instead of this, he employed the original execution. Bac. Abr. tit. Execution.

Bell, for the defendants in error, argued, that by the attachment, the sheriff of Williamson county became fully invested with such a possession and control over the land attached, as authorized him, when judgment should be obtained, and process of execution issued, to dispose of it. The