grant to sue it in the name of the king, as is 1825. usual in such cases."" As to the alleged departure in pleading, which is relied on as one of the causes of demurrer, the objection is, that the replication sets up a cause of action in the custom-house officers, whilst the declaration proceeds on a cause of action for the United States. The answer is, that the suit being here brought in the name of the United States, whose duty and interest it is to prosecute for the benefit of the officers, (who are their grantees,) notwithstanding the remission, the cause of action stated in the replication is just as much in favour of the United States as that set up in the declaration. How, then, stand the pleadings? (1.) The declaration setting up a cause of action in favour of the United States. (2.) A plea of remission by the United States. (3.) A replication, admitting the fact of remission, and affirming the cause of action in favour of the United States, as set up in the declaration, with a new circumstance, viz. a right of third persons, which invalidates the remission so far as they are concerned. This new matter is asserted, not by the officers, but by the United States themselves, who sue precisely as if the parties had not performed the conditions on which the remission was granted, and it had become totally void. It was not necessary that this new matter should have been stated in the a Cro. Jac. 179, 180. Com. Dig. tit. Assignment, (D.) United States V. Morris. United States V. Morris. 1825. declaration. In declaring, it is only necessary to set out enough to maintain the action. In an action for not executing a writ of execution, it is sufficient to set out the judgment, execution, and facts of neglect or misfeasance. Even stating the judgment is merely inducement. It is sufficient to state concisely the circumstances which give rise to the defendant's particular duty or liability." The remission was a matter of defence which it was incumbent on the defendant to set forth. Successive pleadings are designed for this very purpose. The office of the declaration is to set forth the cause of action merely, of the plea to avoid it, and of the replication to avoid the plea. Thus, in debt on bond for the performance of covenants, the plaintiff declared for the penalty. The defendant craved oyer, and pleaded general performance. The plaintiff replied, setting forth particular breaches, and it was held good. declaration in the present case pursues the most approved forms, and with more circumstantiality than usual. Departure is where the plea contains subsequent matter, which does not maintain or fortify the matter in the declaration." But here it does maintain it, and, at the same time, avoids the bar. The bar is remission; the replication shows, that it is no answer to the declara a 1 Chitty's Plead. 369. b Post Master General v. Cochran, 2 Johns. Rep. 413. d Co. Litt. 304. a. The United States V. Morris. tion. In Winch v. Keeley," in assumpsit, defend- 1825. ant pleaded, that plaintiff had become a bankrupt, and assigned all his effects, under the statute, to his legal assignees; plaintiff replied, that the suit was brought by him for the use of another party, to whom he had transferred the debt before the bankruptcy. The replication was held good, and the objection of departure was not even mentioned at the bar. On the part of the defendant, it was insisted, that the judgment ought to be affirmed, for the following reasons: 1. Because the Secretary of the Treasury had a right to remit the forfeiture in question, notwithstanding the judgment of condemnation previously rendered, as stated in the pleadings. 2. Because, the whole case, on the part of the Collector and Surveyor of Portland, proceeds on the ground, that the remission by the Secretary is binding upon the United States, and discharges their moiety of the forfeiture; but has not that effect on the other moiety claimed by them; thus giving a construction to the remission, inconsistent with its own terms, and the act under which it was granted. According to that act, the remission must be valid to the whole extent of the power exercised under it, or not at all; as it is admitted, therefore, to be good in part, it follows that it is good for the whole. 3. Because such a remission is not like a pardon, nor is it to be governed by the same rules ; a 1 Term Rep. 619. 1825. but is equivalent to the judgment or decree of a United States competent tribunal, that no forfeiture should be enforced, inasmuch as it was without wilful negligence, or any intention of fraud, in the person or persons incurring the same. V. Morris. 4. Because, as far at least as it relates to the act of Congress, vesting in the Secretary of the Treasury the remitting power, as therein mentioned, the custom-house officers have no vested rights in any forfeiture, until not only condemnation, but the receipt of the money produced by a sale of the forfeiture, or collection of the bond substituted for it, before which time the Secretary has full power to remit; and, having exercised it in this case, the Collector and Surveyor of Portland are equally bound by it as the United States. 5. Because, if the said Collector and Surveyor of Portland had any vested rights in the forfeiture in question, notwithstanding the remission, then they ought to have enforced them by an action in their own name, and not in that of the United States. 6. Because, the condemnation of the brig and goods being to the use of the United States, and the recovery in the bond being also in the name of the United States, they became trustees for the Collector and Surveyor of Portland, for whatever rights or interest they had therein; and these, whatever they were, were discharged by the remission of the Secretary, inasmuch as the release of a trustee is, at law, a bar of the rights or interest of his cestui 1825. que trust, and especially in a case where fraud is neither charged nor pretended. 7. Because, this being an action to recover damages for a misfeasance, if the United States themselves could sustain it, yet, it being, in its nature, incapable of assignment, they could not transfer to the said Collector and Surveyor such right of action, and authorize its prosecution in their name; much less can it be prosecuted without any such assignment or authority. 8. Because, if the United States could themselves sustain such an action, the said Collector and Surveyor would be entitled to no part of the damages recovered; for such damages would not be the forfeiture, nor the proceeds of the bond which was substituted for it; to a share of which only they are by law entitled. Of course, therefore, they cannot sustain the present action to recover damages for their own private benefit, in the name of the United States, which, if recovered by the United States, they would be entitled to no share of. Mr. Emmett and Mr. D. B. Ogden, for the defendant, stated, upon the first point, that it was remarkable, and might be useful for interpreting the law, that the question as to the power of the Secretary to remit, after sentence, was never raised until subsequently to the judgment of this Court in Jones v. Shore," and more especially a 1 Wheat. Rep. 462. United States V. Morris. |