Forfeitures under the Embargo and Non-intercourse Laws, and Laws prohibiting the Slave Trade.

until the duties are actually paid or otherwise | ammunition for the defence of the vessel as sea secured; and no forfeiture is incurred under the stores, the court refused to adopt a different con68th section by the removal and concealment struction. Ibid. of the goods on which the duties have thus been "secured to be paid." Ibid.

93. Where a vessel, licensed for the coasting trade, engages in any foreign voyage or trade, it subjects the vessel and cargo to confiscation; and though municipal forfeitures are not directly enforced in courts of prize, yet as no claim can be there sustained which is tainted with illegality, they are indirectly enforced. The George, 1 Mason's C. C. R. 24.

94. The forfeiture of a fishing vessel, under the act of congress of July 29, 1813, for fraudulently obtaining the bounty allowed by that act, does not attach on the improvident payment of this bounty to a vessel not entitled to it, but to the act of fraud and deceit, in obtaining it. If a vessel has, in point of fact, entitled herself to the bounty, and fraud and deceit are employed in obtaining it, by the owners, she will be liable to forfeiture. The Swallow v. MS. Decision of the Hon. Judge Ware of the District of Maine."

100. A vessel which, during the existence of the embargo laws, departed from one port in the United States on a voyage to another, but was obliged, from irresistible necessity, to put into a foreign port, and sell her cargo, was not guilty of a violation of these laws. The Brig William Gray, Paine's C. C. R. 16.

101. From a fair comparison of the different embargo acts with each other, it may be collected that congress must expressly make such an instance of necessity an exception to the penal operations of those acts. But if congress have neglected to provide for such an exception, it is the duty of the courts to interpret those laws as they do all penal statutes, by considering the exception as implied. Consent is essential to guilt: and the legislature is supposed to pass all penal laws with the understanding that the courts will not inflict the penalties for such violations as are unintentional. Ibid.

102. This is not, therefore, one of those cases which are referred for mitigation to the secre

95. A vessel licensed for carrying on the fisheries is liable to forfeiture under the act of Feb-tary of the treasury. Ibid. ruary, 1793, sec. 32, for a single act of trading, not authorized by the license. But the taking of a few cattle, and carrying them from the main land to an island in going out, or returning from the fishing ground, as a neighbourly or friendly act, and not for hire, is not engaging in trade within the meaning of the act. Ibid.

4. Forfeitures under the Embargo and Non-intercourse Laws, and Laws prohibiting the Slave Trade

96. Under the act of March 22d, 1794, ch. 187, to prohibit the carrying on the slave trade from the United States to any foreign place or country, the forfeiture is incurred, either by fitting out, or in other words preparing a vessel within the United States, or by causing a vessel to sail from the United States for the purpose of carrying on the slave trade: two distinct acts, either of which draws after it the same consequences, the forfeiture of the vessel. The Emily and the Caroline, 9 Wheat. 381; 5 Cond. Rep.

623.

98. The collector having been clothed with a discretion, under the embargo laws, to grant permits to such foreign vessels as were allowed to depart with their cargoes, to take on board necessary sea stores and provisions, the court refused to decide, in a case where a permit had been granted, that the sea stores taken on board were more than necessary, it not appearing that there was any fraud. The Brig Isabella, Paine's C. C. R. 1.

99. And where it had been the practice at the custom-house, in such cases, to consider arms and

103. The language of the second section of the embargo law of the 25th April, 1808, is so loose that it is impossible to determine whether any offence and forfeiture were intended to be created. At any rate, the reference as to the penalty to the collection law is not to the 50th section of that law which provides against unloading goods in the night. The Schooner E terprise, Paine's C. C. R. 32.

104. The embargo law was passed 221 December, 1807. A vessel cleared out and sailed from St. Marys, Georgia, on the 15th January, and in the evening the collector received information of the passage of the law, and gave notice of it. It did not appear that it was known to the master or owners of the vessel prior to her sailing. Having been seized for a violation of the law, the court decreed her restoration. United States v. 9 Packages of Linen, Paine's C. C. R. 129.

105. It seems that no penalty was intended to be inflicted by the second section of the additional embargo law of the 25th April, 1808, for loading a vessel without inspection; but that the penalty for leaving the district without a clearance, which could be obtained only on inspection, was thought by the legislature to be alone a sufficient sanction to secure an inspection. The Sloop Active, Paine's C. C. R. 247.

106. It seems that the penalties there mentioned were intended to apply to the inspecting officers. Ibid.

107. A vessel which, during the non-inter course law, took a cargo at St. Croix, for Cadiz, with the intention of touching off New Haven on her way thither, for a supply of provisions, and of terminating her voyage in the United States, if by law it could be done; was held not to be forfeited under the 6th section of that law which provides against the putting goods on board a vessel with the intention of importing

Remission and Distribution of the Proceeds of Forfeitures.

them into the United States. The Ship Ann Maria, Paine's C. C. R. 256.

5. Remission and Distribution of the Proceeds of Forfeitures.

108. Under the 3d section of the embargo act of April 25th, 1808, ch. 170, a vessel is not sub- 117. Action of indebitatus assumpsit, was jected to forfeiture for departing without a clear-brought by the officers of the revenue cutter of ance, unless she has departed out of port; pro- the district of Delaware, for one-half of the forceeding from a wharf a mile and a half, with in-feiture incurred for a violation of the non-intertent to go to sea, but not having got out of the port before seizure, is not such a departure as the act intends. The Active v. The United States, 7 Cranch, 100; 2 Cond. Rep. 431.

course law, by a vessel seized by the collector of Delaware, on the information of the plaintiffs, and sent by him to the district of Pennsylvania for trial, where she was condemned, and the 109. The forfeiture of goods, for violation of amount of the forfeiture was received by the the non-intercourse act of March 1st, 1809, ch. defendant, the collector of the port of Philadel195, takes place upon the commission of the phia. Held, 1st. The information to induce a offence, and avoids a subsequent sale to an inno-seizure, need not be as full as the evidence in cent purchaser, although there may have been a the case would authorize to condemn. It is sufregular permit for landing the goods, and although ficient if it induced the prosecution. 2d. It is the duties may have been paid. United States not necessary that the officers of the revenue v. 1960 Bags of Coffee, 8 Cranch, 398; 3 Cond. cutter should, where they gave the information, Rep. 187; United States v. The Mars, 8 Cranch, make a claim for a part of the forfeiture; or 417; 3 Cond. Rep. 198. that they should take any part in the prosecution 110. A foreign vessel, engaged in the African of the case, to entitle them to a portion of the slave trade, captured on the high seas, in time of proceeds. 3d. The consent of the plaintiffs that peace by an American cruiser, and brought in the vessel should be sent from the district of for adjudication, will be restored, even where Delaware to the district of Pennsylvania; or a the vessel belongs to a nation which has prohi-disavowal by them, of having instituted this suit, bited such trade. The Antelope, 10 Wheat. 66; 6 Cond. Rep. 30.

111. In the execution of the laws against the slave trade, no vigilance can be excessive; and restitution ought never to be made but in cases which are purged of every intentional violation by proofs the most clear, the most explicit and unequivocal. The Josefa Segunda, 5 Wheat. 338; 4 Cond. Rep. 672.

112. Under the act of March 22d, 1794, ch. 187, prohibiting the slave trade, if the original object of the equipment and voyage from the United States, was to carry on the African slave trade, the forfeiture attaches, whether the vessel was then owned by American citizens or by foreigners. The Plattsburgh, 10 Wheat. 133; 6 Cond. Rep. 43.

113. It is equally unimportant whether the act was done by the party, suo jure, or for the benefit of another person. Even if all the equipments are innocent in their nature, and adapted to ordinary voyages, if there is positive proof of a guilty intention, forfeiture will attach. Ibid.

114. It is not essential to constitute a fitting out of a vessel, under the slave trade act of April 20th, 1818, ch. 373, that every equipment necessary for a slave voyage, or any equipment peculiarly adapted to such a voyage, should be taken on board; it is sufficient that the vessel was actually fitted out with intent to be employed in the illegal voyage. United States v. Gooding, 12 Wheat. 460; 6 Cond. Rep. 572.

115. Under the 2d and 3d sections of the act of April 20th, 1818, ch. 373, the offence of sailing from a port with an intent to engage in the slave trade, is not committed unless the vessel sails out of the port. United States v. La Coste, 2 Mason's C. C. R. 129.

116. The terminus a quo, is the boundary line of the port; and when the vessel passes from that, she sails from the port, and is on the high Ibid.

seas.

does not constitute a waiver of their right to their share of the forfeiture. 4th. The defendant is not liable to the plaintiffs for such part of the proceeds of the forfeiture as he had paid over to other officers of the custom-house for their shares, before notice of the claims of the plaintiffs. Sawyer et al. v. Steele, 3 Wash. C. C. R. 464.

118. A bond was given to T. S., the collector of the district of Petersburg, under the second section of the embargo act of the 22d of December, 1807, and a suit was afterwards brought by him on the same bond in the district court, and pending the proceedings, to wit, on the 30th of October, 1811, J. S., the collector, died; and judgment was recovered in favour of the United States, on the 30th of November, 1811. On the 26th of the same November, J. S. was appointed collector of the same district, and entered on the duties of his office on the 14th of December, 1811; until which time T. S., who was deputy collector under J. S., at his decease, continued as such to discharge the duties of the office. The judgment of the district court was subsequently affirmed by the circuit court. When the bond was taken, A. T. was surveyor of the district, and continued in that office until his death, which was after the commencement of the suit on the bond, and before judgment thereon, and was succeeded by J. H. P., who was ap pointed on the 30th of March, 1811, and entered on the duties of his office on the 16th of the same month. It was held, that the personal representatives of the deceased collector and surveyor, and not their successors in office, were entitled to that portion of the penalty which is, by law, to be distributed among the revenue offi cers of the district where it was incurred. There. being no naval officer in the district, the division was adjudged to be made in equal proportions between the collector and surveyor. Jones and others v. Shore's Executors and others, 1 Wheat 462; 3 Cond. Rep. 624.

Remission and Distribution of the Proceeds of Forfeitures.

119. The secretary of the treasury has authority, under the remission act of the 3d of March, 1797, ch. 361, to remit a forfeiture or penalty accruing under the revenue laws, at any time, before or after a final sentence of condemnation or judgment for the penalty, until the money is actually paid over to the collector for distribution. United States v. Morris, 10 Wheat. 246; 6 Cond. Rep. 90.

120. Such remission extends to the shares of the forfeiture or penalty to which the officers of the customs are entitled, as well as to the interest of the United States. Ibid.

121. The ship Good Friends, and her cargo of British merchandise, owned by Stephen Girard, a citizen of the United States, was seized by the collector of the Delaware district, on the 19th of April, 1812, for a violation of the nonintercourse laws of the United States, then in | force. The ship and cargo were condemned as forfeited, in the district and circuit court of the Delaware district. On the 29th July, 1813, congress passed an "act for the relief of the owners of the Good Friends, &c.," and a remission of the forfeiture was granted by the secretary of the treasury, under the authority of that act, with the exception of a sum equal to the doublé | duties imposed by an act of congress passed on the 1st of July, 1812. The collector was entitled to one moiety of the whole amount reserved by the secretary of the tion of the remission. States, 6 Peters, 404.

124. But whatever is reserved to the government out of the forfeiture, is reserved as well for the seizing officer as for itself, and is distributable accordingly. The government has no authority, under its existing laws, to release the collector's share, as such, and yet to retain to itself the other part of the forfeiture. Ibid.

125. In point of law, no duties, as such, can legally accrue upon the importation of prohibited goods. They are not entitled to entry at the custom-house, or to be bonded. They are, ipso facto, forfeited by the mere act of importation. Ibid.

126. The secretary of the treasury may remit not only the interest of the United States, but of individuals, in penalties and forfeitures in certain cases, after suit brought, and before judgment. United States v. Lancaster, 4 Wash. C. C. R. 64.

127. A pardon of the president of the United States, after condemnation, as to all the interest of the United States, in the penalty incurred by a violation of the embargo laws, and directing all further proceedings on behalf of the United States to be discontinued, does not remit the interest of the custom-house officers in a moiety. Ibid.

128. Under the ninety-first section of the duty act of March 2d, 1799, ch. 128, the share of a forfeiture to which the collector, &c., of the distreasury, as the condi-trict is entitled, is to be paid to the person who M'Lane v. The United was the collector, &c., in the office at the time the seizure was made, and not to his successor in office at the time of condemnation, and the receipt of the money. Buel v. Van Ness, 8 Wheat. 312; 5 Cond. Rep. 445.

122. Where a sentence of condemnation has been finally pronounced in a case of seizure, the supreme court, as an incident to the possession of the principal cause, has a right to proceed to decree a distribution of the proceeds, according to the terms prescribed by law. And it is a familiar practice to institute proceedings for the purpose of such distribution, whenever a doubt occurs as to the rights of the parties who are entitled to share in the distribution. Ibid.

123. The duty of the collector in superintending the collection of the revenue, and of making seizures for supposed violations of law, is one rous and full of perplexity. If he seizes any goods, it is at his own peril; and he is condemnable in damages and costs, if it should turn out upon the final adjudication, that there was no probable cause for the seizure. As a just reward for his diligence, and a compensation for his risks; at once to stimulate his vigilance and secure his activity, the laws of the United States have awarded to him a large share of the proceeds of the forfeiture. But his right by the seizure is but inchoate; and although the forfeiture may have been justly incurred, yet the government has reserved to itself the right to release, either in whole or in part, until the proceeds have been actually received for distribution; and in that event, and to that extent, it displaces the right of the collector. Such was :he decision of the supreme court in the case of the United States v. Morris, 10 Wheat. 246. Ibid.

|

129. Until final judgment, no part of the forfeiture vests absolutely in the collector; but after final judgment, his share vests absolutely, and cannot be remitted by the secretary of the treasury. The Hollen, 1 Mason's C. C. R. 431.

130. If, pending the proceedings, a remission be made of the whole property forfeited, his whole title is gone; if of a part only, his title attaches to the remainder, and by a judgment of condemnation, becomes fixed and indissoluble. The Margaretta, 2 Gallis. C. C. R. 515.

131. If there is no informer, the United States have one-half, and the officers of the customs the other. If there is an informer, the informer has a fourth, and the custom-house officers a fourth. If the informer is an officer of a revenue cutter, the United States have a fourth, one. fourth to the custom-house officers, and the officer of the revenue cutter one-half. Sawyer et al. v. Steele, 3 Wash. C. C. R. 464.

132. The consent of the claimants that the vessel should be sent into another district for adjudication, or a disavowal by them of having instituted the suit, does not amount to a waiver by them of their right to a share of the forfeiture. Ibid.

133. But the collector is not responsible for such part of the forfeiture as he may have paid over bona fide to other officers, for their shares, before notice of the plaintiff's claim. Ibid.

Fisheries in the Delaware River.-Fishing Vessels.-Fixtures.-Forcible Impeding.

FISHERIES IN THE DELAWARE RIVER. 1. The compact between New Jersey and Pennsylvania, recognises the right of fishery in riparian owners on the Delaware. Bennett v. Boggs, Baldwin's C. C. R. 70.

2. The third section of the act of 1808, definir g a fishing-place, applies only to shore-fisheries; a common right of fishery is necessarily indefinite. Ibid.

rest, by pulling down and removing from the demised premises, a dwelling-house erected thereon, and attached to the freehold. The question raised in the case was, what fixtures erected by the tenant during his term are removable by him. The general rule of the common law undoubtedly is, that whatever is once annexed to the freehold becomes part of it, him who is entitled to the inheritance. This and cannot be afterwards removed, except by rule, however, never was inflexible, and without exceptions. It was construed most strictly between executor and heir, in favour of the latter; and more liberally between tenant for life and in tail, and remainder-man or reversioner, in favour of the former; and tenant, in favour of the tenant. A more extensive exception to the 5. The act of New Jersey, of 1822, is not re-rule has been of fixtures erected for the purposes pugnant to the constitution of the United States.

3. The penalties of the law of New Jersey, of 1822, attach to any person who uses a gillingseine, or drift-net, on the Delaware, unless he has the right of fishing on the opposite shore.

Ibid.

4. An entry under this law, claiming only by common right, is void. Ibid.

Ibid.

6. The proprietors of New Jersey had no right in the Delaware below low-water mark. Ibid. 7. The right to the bed of the river was in the crown, therefore the compact of 1676, did not give a common right of fishery therein. Ibid. 73.

8. The legislature has power to regulate fisheries on the Delaware, by prohibiting the exercise of a common law right. Ibid. 76.

9. The only restraint upon them is, that they cannot, by any law, impair the obligation of a

contract. Ibid.

10. Neither the state nor federal constitution secures a common right of fishery in the Delaware to the people of New Jersey. Ibid.

FISHING VESSELS.

1. The forfeiture of a fishing vessel, under the act of congress of July 29, 1813, for fraudulently obtaining the bounty allowed by that act, does not attach on the improvident payment of the bounty to a vessel not entitled to it, but to the act of fraud and deceit, in obtaining it. If a vessel has, in point of fact, entitled herself to the bounty, and fraud and deceit are employed in obtaining it, by the owners, she will be liable to forfeiture. The Swallow v. MS. Decision of the Hon. Judge Ware of the District of Maine.

of trade. Fixtures which were erected to carry on trade and manufactures were, from an early period of the law, allowed to be removed by the tenant, during his term; and were deemed personalty for many other purposes. Van Ness v. Pacard, 2 Peters, 143.

2. It might deserve consideration, whether, if the rule of the common law of England, which prohibits the removal of fixtures erected by the tenant for agricultural purposes, were not previously adopted in a state by some authoritative practice or adjudication, it ought to be assumed by the supreme court, as a part of the jurisprudence of such state, upon the mere footing of its existence in the common law. Ibid. 145.

3. The question whether fixtures erected for the purposes of trade, are or are not removable by the tenant, does not depend upon the form or size of the building; whether it has a brick foundation or not, or is one or two stories high, or has a brick or other chimney. The sole question is, whether it is designed for the purposes of trade or not. Ibid. 146.

4. If the house were built principally for a dwelling-house for the family, independently of carrying on a trade, then it would doubtless be deemed a fixture, falling under the general rule, and irremovable. But if the residence of the family were merely an accessary for the more beneficial exercise of the trade, and with a view to superior accommodation in this particular, then it is within the exception. Ibid. 147.

5. The main mill-wheel and gearing of a fac2. A vessel licensed for carrying on the fishe-tory, attached to the factory and necessary for ries is liable to forfeiture under the act of Feb- its operation, are fixtures, and real estate to ruary, 1793, sec. 32, for a single act of trading, which the right of dower attaches. Powell v. not authorized by the license. But the taking The Monson and Brimfield Manufacturing Com of a few cattle, and carrying them from the pany, 3 Mason's C. C. R. 459. main land to an island, in going out or returning from the fishing-ground, as a neighbourly or friendly act, and not for hire, is not engaging in rade, within the meaning of the act. lbid.

FIXTURES.

1. Action on the case against the defendant for waste, committed by him, while tenant of the plaintiff, the owner of the reversionary inte

FORCIBLE IMPEDING.

1. It is not necessary, in an indictment for resisting a public officer, to set forth the particular exercise of office in which he was engaged, or the particular act and circumstances of obstruction. United States v. Batchelder, 2 Gallis. C. C. R. 15.

2. To justify a seizure there must be probable

Foreign Vessels.

3. In the execution of a writ of habere facias possessionem, if adverse possession be held, the officer is first to turn out the occupant, and take possession in the name of the law, and after-lating seamen in the merchants' service, does wards deliver it to the plaintiff in the ejectment. not apply to foreign seamen on board of foreign The offence of obstructing process consists in ships. Ex parte D'Olivera, 1 Gallis. C. C. R. refusing to give up possession, or in opposing or 474. obstructing the execution of the writ by threats of violence, which it is in the power of the person to enforce, and thus preventing the officer from dispossessing the person so acting. United States v. Morrow Lowry et al., 2 Wash. C. C. R.

7. If the first writ of habere facias posses-nuary 9, 1808, ch. 112, supplementary to the sionem be returned executed, the plaintiff can not issue an alias. If the writ, though executed, has not been returned, and an alias issues on the suggestion of the plaintiff, that, vice comes non misit breve, resistance to such writ is an offence. Aliter, if the writ has been returned. United States v. Slaymaker, 4 Wash. C. C. R.