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and the forfeiture is not intended to be inflicted by 1824. the act. The probability is, that the words "court

The or,” were omitted before the word “jury,” by mis- Margaret. take, in the draft of the act. But this omission, if it is to have any effect, is not to oust the jurisdiction of the Court, but to take from the party a benefit, which is not within the words of the proviso. It is the opinion of the Court, that the present seizure, which is averred in the libel to have been made upon waters navigable from the sea by, vessels of ten tons burthen and upwards, is a cause of admiralty and maritime jurisdiction, and was rightfully tried by the District Court, without the intervention of a jury." "This objection cannot, therefore, avail the claimant.

The view that has already been taken of the cause upon the merits, as applicable to the four first counts in the libel, render it unnecessary to go into a particular examination of the fifth count. That count is founded, as has been already stated, upon

the 27th section of the act, which declares, “ that if any certificate of registry, or record, shall be fraudulently or knowingly used for any ship or vessel, not then actually entitled to the benefit thereof, according to the true intent of this act, such ship or vessel shall be forfeited to the United States, with her tackle, apparel and furniture." We think, that there are facts enough in the proofs before us, to establish the forfeiture also under this clause. By the transfer at Havana, the schooner lost her American character, and the title to

a Vide ante, vol. 8. p. 391. The Sarah, and Note a. p. 996.

1824. use her certificate of registry for the return voy200 Chests of age. She, however, did use it, and sailed under

its avowed protection, “not being entitled to the benefit ther of, according to the intent of the act.”

Tea.

The judgment of the District Court is reversed, and a decree of condemnation awarded against the schooner and her appurtenances.

(INSTANCE Court.)

Two HUNDRED CHESTS OF TEA, SMITH, Claimant.

In a libel of information, under the 67th section of the collection act

of 1796, c. 128. against goods, on account of their differing in description from the contents of the entry, it is not necessary that it

should allege an intention to defraud the revenue. A question of fact, as 10 the rate of duties payable upon certain teas,

imported as bohea. That term is used in the duty act in its known commercial sense; and the bohea tea of commerce is not usually a distinct and simple substance, but is a compound, made

up in China, of various kinds of the lowest priced black teas. But, by the duty acts, it is liable to the same specific duty, without

regard to the difference of quality and price.

APPEAL from the Circuit Court of Massachusetts.

This was a libel of information, filed in the District Court of Massachusetts, against two hundred chests of tea, alleging that, on the 8th of September, 1819, the collector of the customs for the port of Boston seized at that port the said chests of

1824.

200 Chests of

Tea.

tea, as forfeited, for having been unlawfully imported at the port of New-York, in the ship Ontario, on the 29th of June, 1819, from Canton, in China, as being that kind and denomination of teas commonly called bohea teas, and afterwards transported coastwise to Boston, in the original chests and packages, and there entered as bohea; and that, on such seizure and examination, according to law, the chests and packages were found to differ in their contents from the entries, and the teas contained in them to be of a different kind and quality of black teas, and not bohea teas, as represented in the entries. The claim interposed by T; H. Smith, stated, that the teas in question

a The 67th section of the collection act of 1799, ch. 128. upon which this information was founded, provides, “ that it shall be lawful for the collector, naval officer, or other officer of the customs, after entry made of any goods, wares or merchandise, on suspicion of fraud, to open and examine, in the presence of two or more reputable merchants, any package or packages thereof; and is, upon examination, they shall be found to agree with the ent', the officer making such seizure and examination, shall cause the same to be repacked, and delivered to the owner or claimant forthwith ; aod the expense of such examination shall be paid by the said collector or other officer, and allowed in the settlement of his accounts; but if any packages so examined, shall be found to differ in their contents from the entry, the goods, wares, or merchandise, contained in such package, or packages, shall be forfeited : Provided, that the said forfeiture shall not be incurred, if it shall be made appear, to the satisfaction of the collector and naval officer of the district where the same shall happen, is there be a naval of ficer; and if there be no naval officer, to the satisfaction of the said collector, or of the Court in which a prosecution for the forfeiture shall be had, that such difference proceeded from accident or mistake, and not from an intention to defraud the revenue."

1824.

200 Chests of

Tea.

were imported and entered by him, at the port of New-York, as bohea teas, and that they are of the kind and denomination called bohea teas, and not of a different kind or quality of teas. The District Court pronounced a decree of condemnation, upon the testimony taken in the cause, which was affirmed, pro forma, in the Circuit Court, upon appeal; and the cause was, thereupon, brought to this Court.

March 9th.

The cause was argued by Mr. Webster and Mr. D. B. Ogden, for the appellant, and by Mr. Blake, for the respondents.

On the part of the appellant, it was contended, that the examination and seizure authorized by the 67th section of the duty act of 1799, c. 128. are limited to the collector of the district, where the goods were originally entered, and the duties secured upon importation ; and that, consequently, the case made out by the libel was not within the purview of the act, even supposing the collector might, by his general authority, make a seizure, and assert the forfeiture in a libel properly framed for that purpose.

The United States were concluded, by the entry and inspection of the teas, at the port of New-York, where the importation from a foreign port was made, and the duties paid and secured. Besides, the libel contains no allegation of an intention to defraud the revenue. By the terms of the statute, no forfeiture is incurred if the difference between the entry and the packages proceeded from accident and mistake, and not

from an intention to defraud the revenue. The 1824. want of such an allegation must, therefore, be con

200 Chests or sidered as a substantial defect in the libel. The Tea. counsel also minutely examined the evidence, and insisted that the statute meant to describe the different kinds of teas in ordinary commercial language, and not with scientific precision. The tea now in question, is the bohea of commerce, whatever might be its botanical designation, or its Chinese name.

For the respondents it was argued, that the construction of the 67th section of the act, which had been contended for by the claimant, would, if adopted by the Court, be fatal to the whole system of revenue laws. There was nothing in the terms of the section, or in other parts of the statute, which restricted it to the collector of the port and district where the original importation from abroad was made. On the contrary, the terms, a collector,” and “the collector," are used

promiscuously throughout the act, where an authority is intended to be given to, or a duty imposed on, the collectors of the customs generally; and wherever it is intended to confine the authority or duty to the collector of any particular port, appropriate words are used for that purpose. It was altogether an erroneous supposition, that an entry of goods, brought coastwise from the collection district where they were originally imported to another, was not required by the revenue laws. On the contrary, whenever the value of such goods exceeds 400 dollars, and they are contained

Vol. IX.

55

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