share allowed to individuals, as the part belonging to the United States. The United States v. Thomas Morris, Paine's C. C. R. 209.

33. A collector of internal revenue, who is the successor in office to one who had taken bonds for duties payable to the United States, is not liable for the amount of those bonds, but is only liable for the ordinary care of collecting the same, and for urging on the attorney to whom the bonds had been delivered for suit. United States v. Snyder, 4 Wash. C. C. R. 559.

not exceeding three thousand dollars, received during the seven months preceding his removal; although he did not continue in office a whole year from January 1st, and that the year of his successor in office commenced on the day of his appointment, and ended with the same day of the succeeding year. United States v. Pearce, 2 Sumner's C. C. R. 575.

35. In a suit against a surety of a collector of internal revenue, upon a joint and several bond, with condition that the collector has truly and faithfully discharged his duties, and also with condition that he will truly and faithfully discharge them, a recovery may be had of the surety, for a breach of the latter condition by the collector. The United States v. Brown, Gilpin's D. C. R. 179.

36. A collector of the customs is not at liberty to receive any thing but money of the United States, or foreign gold or silver coin, made current by law, in payment for duties. If he receives a check on a bank in payment, it is at his own peril, and if the check is not paid, the bond is not discharged; à fortiori, it is not discharged by the receipt of a memorandum check. Johnson in Error v. The United States, 5 Mason's C. C. R. 425.

37. The receipt of the collector acknowledging payment is prima facie evidence, but it is not conclusive of the fact of payment. Ibid.

38. A collector, like other public officers, cannot bind the United States by any acts beyond or contrary to the authority given to him by law. lbid.

39. Query, Whether a collector is not to all intents functus officio, as soon as a removal takes place by the appointment of another person in his stead? Ibid.

40. The act of congress of 1822, ch. 107, provides, that whenever the emoluments of certain collectors of the customs "shall exceed three thousand dollars in any one year," &c., the excess shall, in every such case, be paid into the treasury of the United States. The defendant was collector of the port of Gloucester, and was removed from office July 29th, 1829. From January 1st, of the same year, to the day of his removal, he had received for salary, fees, and commissions, three thousand four hundred and fifty-seven dollars and eighty-three cents; the excess of this over three thousand dollars, after deducting certain legal expenses, he paid into the treasury of the United States. Held, that all the fees and commissions received by the collector, are to be deemed to be received for his own use, until they exceed the maximum amount of three thousand dollars; that the defendant was therefore absolutely entitled, in his own right, to the fees and emoluments of office,

42. The process act of the United States gives the same remedy to the United States against the lands of delinquent collectors, that the statute of Virginia gives against the lands of those against whom the state has obtained judgment. Ibid.

43. The plaintiff, as the importer of certain merchandise from England, entered the same at the custom-house in New-York, on the 29th of March, 1837, as cases containing cotton gloves. He gave a bond for the duties, payable on the 27th of June, 1838. In 1838, it was discovered that one of the cases, No. 45, contained silk hose, and not cotton gloves. The plaintiff paid the bond to the collector, under protest; having claimed from the comptroller of the treasury to be released from the payment of the duties on case No. 45, alleging that, as silk hose, they were not liable to duty under the act of congress of 14th July, 1832. The plaintiff instituted a suit against the collector, to recover back the duties so paid to him. Held, that the suit could not be sustained, after so long a time from the entry of the merchandise. Held, that silk hose, and all manufactures of silk, of which silk is the component material of chief value, coming from this side of the Cape of Good Hope, except sewing silk, are free of duty. Bend v. Hoyt, 13 Peters, 263.

44. Even courts of equity will not interfere to assist a party to obtain redress for an injury which he might, by ordinary diligence, have avoided. And, à fortiori, a court of law ought not, where the other party has, by his very acts and omissions, lost his own proper rights and advantages. Ibid.

45. A collector is generally liable in an action to recover back an excess of duties paid to him as collector, when the duties have been illegally demanded, and a protest of the illegality has been made at the time of payment, or notice given that the party means to contest the claim. Nor is there any doubt that a like action gene. rally lies, where the excess of duties has been paid under a mistake of fact, and notice thereot

by any exercise of their discretion, enlarge or restrict the obligation of the collector's bond. Much less can they, by the mere fact of keeping an account current, in which debts and credits are entered, and without any express appropriation of payments, affect the rights of the sureties. The collector is a mere agent or trustee of the government. He holds the money he receives in trust, and is bound to pay it over to the government as the law requires; and in the faithful performance of this trust the sureties have a direct interest, and their rights cannot be disregarded. lbid.

52. The treasury officers cannot say that the funds currently received and paid over shall be appropriated in the discharge of a defalcation which occurred long before the sureties were bound for the collector. If the collector be in default for a preceding term, it is the duty of the treasury department to require payment from him and his sureties for that term. To pay such defalcation out of accruing receipts during a subsequent term, even with the assent of the collector, would be a fraud upon the sureties for such term. Ibid.

48. The bond on which suit was brought is dated 22d June, 1830, and relates to the 29th of March preceding, at which time the term of the collector commenced; and its obligation extends to the 29th of March, 1834. That the sureties are not bound beyond that period, is too clear for controversy. As it regards their liability, it is the same as if Swartwout had served only the term covered by their bond. For the faithful performance of his duties under the executive appointment which preceded that term, he gave bond and security, and also under the appointment for the four years which he served from the 29th of March, 1834. So far as the sureties are concerned, these terms are as separate and distinct as if a different individual had filled each of them. Ibid.

49. At the commencement of each term, an amount is charged against the collector, but it may be composed of bonds in suit, not due, and deposited specially. The balance charged, therefore, at the commencement of any quarter or term, does not show that the collector is in default. He may indeed stand charged with money actually paid into the treasury by him, but for which he has received no credit, or what is called a "covering warrant" has not been issued. Until this has been done, the credit cannot, by the usages of the department, be given. Ibid.

50. The retrospective obligation of a bond with surety given by a collector, is as much limited by the term of the new appointment as the prospective. The obligation is limited to the term of office fixed by law. Ibid.

51. The treasury officers are the agents of the law. It regulates their duties, as it does the duties and the rights of the collector and his sureties. The officers of the treasury cannot,

charge them; and this is not done on the face of a general transcript of the accounts of a collector during more than one term. It is therefore necessary to have a restatement of the account for the purpose. Ibid.

54. The amount charged to the collector at the commencement of the term is only prima facie evidence against the sureties. If these can show, by circumstances or otherwise, that the balance charged in whole or in part by the collector has been misapplied by the collector prior to the new appointment, they are not liable for the sum so misapplied. Ibid.

55. In answer to the question, "whether the payments made by the collector subsequently to the 28th of March, 1834, should be appropriated in discharge of his indebtment on that day," the court say: That so far as such payments were made of moneys accruing and received in the subsequent term, they should not be so applied. But so far as the payments were made in the subsequent term of moneys received on dutybonds or otherwise, which remained charged to the collector as of the preceding special term, such payments should be appropriated to the discharge of the indebtment of the collector for that term. Ibid.

56. Where the collector of Ipswich claimed a commission on drafts drawn by him on the collector at Boston, in payment of bounties due to fishermen, under the act of 1813, ch. 34; it was held, that there being no provision by which a commission is allowed thereon, the collector could not charge a commission. Andrews v. United States, 2 Story's C. C. R. 202.

57. The collector of any port, being authorized by the act of 1817, ch. 282, sec. 7, to appoint a deputy, with the approbation of the secretary of the treasury; it seems, that a deputy, so appointed, should receive a reasonable compensa

tion for his services, although no compensation therefor be fixed. Ibid.

58. All expenditures made by a collector, for office-rent, clerk-hire, fuel, and stationary, are to be deemed incidents to his office, and should be allowed as proper charges against the United States; and if he do not keep and transmit yearly accounts thereof, according to the requisitions of the act of 1799, ch. 129, sec. 2, he does not forfeit his right to be reimbursed for such expenditures, but only subjects himself to the payment of the penalty. Ibid.

59. By the act of May 7, 1822, ch. 107, sec. 9, providing for the salaries of collectors and naval officers, the necessary expenses of the office are a primary charge upon the gross receipts or fund, and the officer is entitled to the remainder only, after such deduction; but he is not entitled thereby to receive three thousand dollars, and to charge any deficiency below that sum in the receipts to the government. Wentworth v. United States, 2 Story's C. C. R. 452.

and the vessel was actually unseaworthy. The United States v. Ashton, 2 Sumner's C. C. R. 13.

2. It is also so, if they acted bona fide and upon reasonable grounds, and apparent unseaworthiness; and it is doubtful whether the vessel be unseaworthy or not. But if, in such a case, the vessel be clearly unseaworthy, it is no defence. Ibid.

3. To sustain an indictment for an endeavour to commit a revolt, under the crimes act of 1835, ch. 40, section 2, a confederacy or combination must be shown between two or more of the seamen, not to do further duty on board the ship, and to resist the lawful commands of the officers. The United States v. Cassedy, 2 Sumner's C. C. R. 582.

4. Semble: An action on the case, in the nature of an action for a conspiracy, may be maintained, as in a case of common tort, against all or any one or more of the tort feasors. Smith v. Rives, 2 Sumner's C. C. R. 339.

COLLISION.

1. A collision between two ships on the high seas, whether it result from accident or negligence, is, in all cases, to be deemed a peril of the seas, within the meaning of a policy of insurance. Hale v. Washington Ins. Co., 2 Story's

C. C. R. 176.

COMMERCE.

Constitutional Regulations of Commerce.

3. Where a loss by collision arises from the negligence of the master and crew, the master is personally responsible; but the ship also is primarily, although not exclusively, liable for compensation. Ibid.

preme; and the state laws must yield to that supremacy, even though enacted in pursuance of powers acknowledged to remain in the states. Gibbons v. Ogden, 9 Wheat. 1; 5 Cond. Rep. 562. 2. The power of regulating commerce extends to the regulation of navigation. Ibid.

5. Where the ship Columbia, through the negligence or fault of her mate and crew, came into collision with the barque Ritchie, by which both vessels sustained damage; and the master of the Columbia, in behalf of his owners, paid to the owners of the Ritchie a certain sum, by way of compromise for the damage sustained by the latter vessel; it was held, that the underwriters on the Columbia were liable for the sum so paid, as well for the damage, as for the repairs and losses by the collision to the Columbia. Ibid.

COMBINATION.

1. On an indictment for an endeavour to commit a revolt, under the twelfth section of the crimes act of 1790, ch. 36, it is a sufficient defence of the parties accused, that the combination charged as an endeavour, was to compel the master to return into port for the unseaworthiness of the vessel; if the defendants asked bona fide, VOL. I.-31

among the several states. It does not stop at the external boundary of a state; but it does not extend to a commerce which is completely internal. Ibid.

4. The power to regulate commerce is general, and has no limitations but such as are prescribed in the constitution itself. This power, so far as it extends, is exclusively vested in congress, and no part of it can be exercised by a state. Ibid.

5. A license of a coasting vessel under the acts of congress for regulating the coasting trade, gives a permission to carry on that trade. Ibid.

6. The license is not merely intended to confer the national character. Ibid.

7. State inspection laws, health laws, and laws for regulating the internal commerce of a state, and those which respect turnpike roads, ferries, &c., are not within the power granted to con gress. Ibid.

8. The power of regulating commerce extends to navigation carried on by vessels exclusively employed in transporting passengers. Ibid.

9. The power of regulating commerce extends to vessels propelled by steam or fire, as well as

2 v

Ibid.

10. An act of a state legislature, requiring all importers of foreign goods, by the bale or package, &c., and other persons selling the same, by wholesale, bale or package, &c., to take out a license, for which they shall pay fifty dollars, and in case of neglect or refusal to take out such license, subjecting them to certain forfeitures and penalties, is repugnant to that provision of the constitution of the United States, which declares that "no states shall, without the consent of congress, lay any impost or duty, on imports or exports, except what may be absolutely necessary for executing its inspection laws;" and to that which declares that congress shall have power "to regulate commerce with foreign nations, among the several states, and with the Indian tribes." Brown v. The State of Maryland, 12 Wheat. 419; 6 Cond. Rep. 555.

11. The power to regulate commerce, given to congress by the constitution, is coextensive with the subject on which it acts; and cannot be stopped at the external boundary of a state, but must enter its interior. If the power reaches the interior of a state, and may be there exercised, it must be capable of authorizing the sale of those articles it introduces. Commerce is intercourse; one of its most ordinary ingredients is traffic. It is inconceivable, that the power to authorize this traffic, when given in the most comprehensive terms, with the intent that its efficacy shall be complete, should cease at the point, where its continuance is indispensable to its value. Ibid.

12. To what purpose should the power to allow importation be given, unaccompanied with the power to authorize a sale of the thing imported? Sale is the object of importation, and it is an essential ingredient, as indispensable to the existence of the entire thing, as the importation itself. It must be considered as a component part of the power to regulate commerce. Congress has not only a right to authorize importation, but to authorize the importer to sell. lbid.

13. In February, 1824, the legislature of New York passed "an act concerning passengers in vessels arriving in the port of New York." By one of the provisions of the law, the master of every vessel arriving in New York from any foreign port, or from a port of any of the states of the United States, other than New York, is required, under certain penalties, prescribed in the law, within twenty-four hours after his arrival, to make a report in writing, containing the names, ages, and last legal settlement of every person who shall have been on board the vessel commanded by him during the voyage; and if any of the passengers shall have gone on board any other vessel, or shall, during the voyage, have been landed at any place with a view to proceed to New York, the same shall be stated in the report. The corporation of the city of New York instituted an action of debt, under this law, against the master of the ship Emily, for the recovery of certain penalties imposed by this act; and the declaration alleged, that the Emily, of which William Thompson was the

from a country out of the United States, and that one hundred passengers were brought in the ship, in the voyage, and that the master did not make the report required by the statute referred to. The defendant demurred to the declaration, and the judges of the circuit court being divided in opinion on the following point, it was certified to the supreme court, "That the act of the legis lature of New York, mentioned in the plaintiff's declaration, assumes to regulate trade and commerce between the port of New York and foreign ports, and is unconstitutional and void." The supreme court directed it to be certified to the circuit court of New York, that so much of the section of the act of the legislature of New York, as applies to the breaches assigned in the declaration, does not assume to regulate commerce between the port of New York and foreign ports; and that so much of the said act is constitutional. The City of New York v. Miln, 11 Peters, 102.

14. The act of the legislature of New York is not a regulation of commerce, but of police; and being so, it was passed in the exercise of a power which rightfully belonged to the state. The state of New York possessed the power to pass this law, before the adoption of the constitution of the United States. The law was intended to prevent the state being burdened with an influx of foreigners, and to prevent their becoming paupers, who would be chargeable as such. The end and means here used, are within the competency of the states, since a portion of their powers were surrendered to the federal government. Ibid.

15. The section of the act of the legislature of New York, on which this action is brought, falls within the limits of the powers of state laws drawn by the court in the case of Gibbons v. Ogden; aud there is no aspect in which the powers exercised by it transcends these limits. There is not the least likeness between the case of Brown v. The State of Maryland, and the case before the court. Ibid.

16. In the case of Brown v. The State of Maryland, the supreme court did indeed extend the power to regulate commerce, so as to protect the goods imported from a state tax after they were landed, and were yet in bulk, because they were the subjects of commerce, and be cause the power to regulate commerce, under which the importation was made, implied a right to sell whilst the bales or packages were in their original form. This does not apply to persons. They are not the subjects of commerce. There is a portion of the reasoning of the court, in the cases of Ogden v. Saunders, 6 Cond. Rep. 523, and Brown v. The State of Maryland, which would justify measures on the part of the state, not only approaching the line which separates regulations of commerce from those of police, but even those which are almost identical with the former class, if adopted in the exercise of their acknowledged powers. Ibid.

17. From the language of the supreme court in the cases of Ogden v. Saunders, and Brown v. The State of Maryland, it appears, that whilst a state is acting within the scope of its legiti,