United States V. Morris. were issued for their benefit, and solely to col- 1825. lect the said sum of 11,180 dollars 87 cents, for their own separate use, and that the defendant had notice thereof when the said several writs of execution were delivered to him to be executed; setting out, also, two endorsements on the execution, one signed by the District Attorney of Maine, notifying the defendant, that the execution was for the benefit of the said Collector and Surveyor, and directing the Marshal to collect the same by their order. The other was signed by the Collector and Surveyor, requiring the Marshal to collect the execution forthwith, and deposit the money agreeably to the command of the writ, and notifying him, that the property in the execution was in them, and directing him to receive orders from them, and from no other person whatsoever, in whatever related to the said execution. And it was then averred, that the present suit was for the purpose of enabling the Collector and Surveyor to recover their damages for the injury they had sustained by reason of the misfeasance of the defendant, in the declaration mentioned, and not for the benefit, use, or behoof, of the said plaintiffs. To this replication the defendant demurred specially, and stated the following causes of demurrer (1.) For that the replication is a departure from the declaration, in this, that the declaration proceeds upon a cause of action in favour of the United States; whereas the replication proceeds upon a cause of action in favour of the said Ilsley and Jewett, &c. (2.) For that the United States V. Morris. 1825. replication discloses no lawful and sufficient authority for the said I. and J., to prosecute the said action against the said T. M., &c., and in the name of the United States. (3.) For that the declaration proceeds upon the ground, that the several writs of execution therein respectively mentioned, were issued upon a judgment obtained for the use of the United States, and, therefore, according to the act in such case made, &c., might lawfully run and be executed in any other State or territory of the United States, than the said District of Maine, in which the said judgment was obtained. Whereas the replication discloses the fact, that the said judgment was not obtained for the use of the said United States, but for the use and benefit of the said I. and J., and, therefore, could not run and be executed in any other State, &c. (4.) That the suit is prosecuted in the name of the United States, by an attorney, on record, other than the District Attorney of the United States for the Southern District of New-York. A joinder in demurrer having been filed, judgment was given for the defendant in the Court below, and the cause brought by writ of error to this Court. On the part of the plaintiff in error, it was contended, that the judgment ought to be reversed, 1. Because the Secretary of the Treasury had no power to remit the share of the forfeiture which belonged to the custom-house officers. 2. Because the action was rightly brought in the name of the United States, by an attorney of the Court below, specially authorized to prose- 1825. cute the suit by an order of one of the Judges of, that Court. 3. Because the replication is not a departure from the declaration, proceeding upon a different cause of action from that stated in the declaration. Mr. Wheaton, for the plaintiffs in error, stated the principal question in the cause to be, whether, after a definitive sentence of condemnation, in a revenue cause, the Secretary of the Treasury has a right, under the Remission Act of the 3d of March, 1797, c. 361. [lxvii.]" to remit the forfeiture so as or per a Which provides, (s. 1.) "That wherever any person, sons, who shall have incurred any fine, penalty, forfeiture, or disability, or shall have been interested in any vessel, goods, wares, or merchandise, which shall have been subject to any seizure, forfeiture, or disability, by force of any present or future law of the United States, for the laying, levying, or collecting, any duties or taxes, or by force of any present or future act, concerning the registering and recording of ships or vessels, or any act concerning the enrolling and licensing ships or vessels employed in the coasting trade or fisheries, and for regulating the same, shall prefer his petition to the Judge of the District in which such fine, penalty, forfeiture, or disability shall have accrued, truly and particularly setting forth the circumstances of his case; first causing reasonable notice to be given to the person or persons claiming such fine, penalty, or forfeiture, and to the Attorney of the United States for such District, that each may have an opportunity of showing cause against the remission or mitigation thereof; and shall cause the facts which shall appear upon such inquiry, to be stated and annexed to the petition, and direct their transmission to the Secretary of the Treasury of the United States, who shall thereupon have power to mitigate or remit such fine, forfeiture, or penalty, or remove such disability, or any part thereof, if in his opinion the United State's V. Morris. 1825. to affect the right of the officers of the customs, under the Collection Act of 1799, c. 128. [cxxviii.] ss. 89. and 91.," to a moiety of the fines, penal United States V: Morris. same shall have been incurred without wilful negligence, or any intention of fraud in the person or persons incurring the same; and to direct the prosecution, if any shall have been instituted for the recovery thereof, to cease and be discontinued, upon such terms or conditions as he may deem reasonable and just." (S. 3.) "That nothing herein contained shall be construed to affect the right or claim of any person to that part of any fine, penalty, or forfeiture, incurred by the breach of any of the laws aforesaid, which such person shall or may be entitled to, by virtue of the said laws, in cases where a prosecution has been commenced, or information has been given before the passing of this act, or any other act relative to the mitigation or remission of such fines, penalties, or forfeitures; the amount of which right and claim shall be assessed and valued by the proper Judge or Court in a summary way." Court a Which provides, (s. 89.) " That all penalties accruing by any breach of this act, shall be sued for and recovered, with costs of suit, in the name of the United States of America, in any competent to try the same; and the trial of any fact which may be put in issue, shall be within the judicial District in which any such penalty shall have accrued; and the Collector within whose District the seizure shall have been made, or forfeiture incurred, is hereby enjoined to cause suits for the same to be commenced without delay, and prosecuted to effect; and is, moreover, authorized to receive from the Court, within which such trial is had, or from the proper officer thereof, the sum or sums so recovered, after deducting proper charges, to be allowed by the said Court; and on receipt thereof the said Collector shall pay and distribute the same, without delay, according to law," &c. (s. 91.) "That all fines, penalties and forfeitures, recovered by virtue of this act, and not otherwise appropriated, shall, after deducting all proper costs and charges, be disposed of as follows: one moiety shall be for the use of the United States, and be paid into the Treasury thereof by the Collector receiving the same; the other moiety shall be divided between, and paid in equal proportions to, the Collector ties, and forfeitures, recovered under the act. He insisted, that the right of the Collector, &c. accruing by the seizure, was consummated by the final sentence of condemnation, and became an absolutely vested right, which could not be devested by the remission after such sentence. This had been expressly determined in the Circuit Court for the First Circuit ;" and though the case had not hitherto been presented to this Court, there were other analogous cases which settled the doctrine, that, as between the representatives of a deceased Collector, and his successor in office, or as between a removed Collector and such successor, the share of the forfeiture to which he is entitled attaches, and is consummated by the sentence of condemnation." This went upon the principle, that it became an absolutely vested right, by relation back to the time of seizure. If it were an absolutely vested right, it must be vested as against the government. It is not vested, even as against the government, at the time of the seizure. That only gives an inchoate right, which may never become absolute for want of a condemnation, or may be intercepted by a remission before condemnation. The and Naval Officer of the District and Surveyor of the port, wherein the same shall have been incurred, or to such of the said officers as there may be in the said District; and in districts where only one of the aforesaid officers shall have been established, the said moiety shall be given to such officer," &c. a The Margaretta, 1 Gallis. Rep. 515. 522. The Hollen, 1 Mason's Rep. 431. b Jones v. Shore, 1 Wheat. Rep. 462. Van Ness v. Buel, 4 Wheat. Rep. 74. 1825. United States V. Morris. |