decision on your appeals from the decision of the collector of the port on the importations involved in this action-notice of the secretary of the treasury's decisions?
Defendant's Counsel. We object to that on the ground that it is ' immaterial whether the decision was received or not. The Court. I think the objection is well taken. It is not incumbent upon the secretary to communicate his decision. Plaintiffs' counsel excepts.
Upon the application of defendant's counsel to direct a verdict in favor of the defendant, the court said: .
Gentlemen of the Jury: Upon the question of law in this case, there being no question of fact, the court has decided that this action is a statutory one, and the statutory conditions have not been performed by the plaintiffs; you will therefore render a verdict in favor of the defendant.
Under the directions of the court the jury so found.
THE PURISSIMA. CONCEPCION. 1 UNITED STA.'fES
THE PURISSUU CONCEPCION.1
(Uircuit Uourt, E. D. Louisiana. June, 1885.)
CUSTOMS DUTIES-FoRFEITURE-ACT OF JUNE
22,1874. Under section 16 of the act of congress approved ,Tune 22, 1874, (Supp. Rev. St. p. 80,) in order to adjudge a forfeiture or a penalty, the court or jury must find that the act charged was committed with an actuat intention to defraud the United States.
Appeal from District Court. J. W. Gurley, Asst. Dist. Atty., for the Government. John D. Rouse and Wm. Grant, for claimants. PARDEE, J. That the seized goods were not placed by the master on his sworn manifest, and were concealed on the ship, and the master did offer money to the seizing omcers, not only justifies the seizure, but makes a strong prima facie case for the government in demanding the penalty against the ship, and the condemnation of the goods. The claimant meets this prima facie case with the defense that the goods were not brought to this port for sale, use, or consumption in the United States, but were goods belonging to the owner, in transit to Spain, and that they were not. omitted from the manifest nor concealed with any intent to defraud the United States. His
Reported by .Toseph P. Hornor, Esq., of the New Orleans bar.
THE PURISSIMA CONCEPCION.
proof largely consists of a letter written by the owner to the master, directing the purchase in Havana of the goods, and giving instructions how to bring them into Spain, and of the testimony of the master, taken under commission. The government has moved to suppress both the letter and com· mission. The letter is objected to because it is not a sworn statement, because there was no opportunity for cross-examination, and because a party cannot make evidence for himself. The commission is objected to because the evidence of the master therein conflicts directly with the sworn statements of the same master in the manifest. The history of the letter shows that it was written by the owner to the master long prior to the purchase even of the seized goods, when use of it as evidence could not have been contemplated, and it was turned over at the time of the seizure to show the intention of the master in the premises. As a fact in the history of the case, it would seem admissible to have such effect as properly entitled to in connection with the other circumstances in the case. The objection to the commission goes to its effect rather than to its admissibility. The oath attached to the manifest, and taken by the master, was the formal oath prescribed by the statute. The manifest seems to have been made out in English and Spanish, but the oath seems only to have been taken in English. It is only by considering that the master understood no English, and that the oath was taken carelessly and negligently, and in short was a "custom-house oath," that any credence can be given to the master's evidence taken under the commission; as the two are diametrically opposed. And the same suspicion must attach to the evidence of the master, relating to the circumstances under which he offered money to" the seizing officers. However, taking the evidence as the whole of it strikes my mind, the following appears to be the true inwardness of the case. The Purissima Concepcion was in Havana, destined to come to New Orleans in ballast, there to take a cargo of staves to Spain. The owner, living in Seville, desired to import from Cuba some tobacco, probably without paying duties or charges to the Spanish government, and he, therefore, by letter directed the master how to obtain the means, and make the purchase, concealing from the merchants the object, and how to conceal the tobacco under the staves so as to have no trouble in entering the Spanish port, using this language: "I need not tell you that on your arrival at Benanza you bring"the above under the staves better than in the cabin, the secret in which has been denounced," etc. The master made the purchase as directed, and concealed the tobacco in the cabin to enter New Orleans, undoubtedly intending to again hide it under the staves when the cargo should be taken aboard. 1'he master omitted the tobauco from the manifest in New Orleans, not from ignorance of the requirements of our customs regulations, for he placed other goods in transit thereon, but because he did not desire trouble to himself here in bonding and accounting
for the tobacco, nor to embarrass himself in his ultimate intention of smuggling the tobacco into Spain. On the goods being found by the inspectors of customs, he offered money to get himself out of trouble, without any particular care whether it was received as a bribe or as duties. 1'hese I think to be the real facts of the case as developed by the proof. Under such a showing it would seem there ought to be no trouble in condemning the goods as forfeited, and condemning the ship for the statutory penalty equal to the value of the goods. See section 2809, Rev. St., which provides that where goods are bronght in the United States in any vessel from any foreign port, which shall not be included or described in the manifest, the master shall be liable to a penalty equal to the value of the goods, and the goods so omitted, when belonging to the master, officers, or crew of the vessel, shall be forfeited. But there is trouble. Section 16 of an act of congress approved June 22,1874, (see Supp. Rev. St. 80,) provides as follows:
"That in all actions, suits, and proceedings in any court of the United States now pending, or hereafter commenced or prosecuted, to enforce or declare the forfeiture of any goods, wares, or merchandise, or to recover the value thereof, or any other Sllm alleged to be forfeited by reason of any violation of the provisions of the customs revenue laws, or any such provisions, in which action, suit. or proceeding an issue or issues of fact shall have been joined, it shall be the duty of the court, on the trial thereof, to submit to the jury, as a distinct and separate proposition, whether the alleged acts were done with an actual intention to defraud the United States, and to require upon such proposition a special finding by such jury; or, if such issues be tried by the court without a jury, it shall be the duty of the court to pass upon and decide such proposition as a distinct and separate finding of fact. And in such cases, unless intent to defraud shall be so found, no fine, penalty, or forfeiture shall be imposed."
Under this section, in order to adjudge the forfeiture and the penalty in this present case, the court must find that the master omitted the goods from the manifest with an actual intention to defraud the United States. This actual intention to defraud the United States does not appear from the evidence,-the contrary seems more probable,-so that while I condemn the conduct of the owner and of the master, and somehow feel that there is a failure of justice, yet I am compelled, as was the learned judge of the district court, to give judgment against the United States, and in favor of the claimant, who, under the peculiar law aforesaid, is allowed to come into court with not the cleanest hands, and compel a judgment in his favor. The judgment and findings of the district court are affirmed.
UNITED STATES UNITED STATES
10, 1885.) 3490-1J494.
(District Court, D. Oregon.
FALSE CLAIMS AGAINST UNITED STATES REV. ST.
ACTION UNDER SECTIONS
An action brought by a private prosecutor under sections il490-3494, Rev. St., to recover damages and forfeiture for a violation of section 5438, Rev. St., b: what was known at common law as a" popular" or qUi tam action, and is under the sole and exclusive control of said prosecutor, subject to the restriction on his right to discontinue the same, contained in section 3491, Rev. St., and his interest or share in any judgment obtained therein is his absolute private property, and the United ::ltaLes cannot compromise. remit, or release the same bv pardon or otherwise. -
Motion for leave to enter satisfaction of judgment. The opinion states the facts. James F. Watson, Dist. Atty., for the United States. H. Y. Thompson, for defendant. James K. Kelly, for prosecutor. DEADY, J. By section 3469, Rev. St., it is provided as follows: "Upon a report by a district attorney, or any special attorney or agent having charge of any claim in favor of the United States, showing in detail the condition of such claim, and the terms upon which the same may be compromised, and recommending that it be compromised on the terms so offered, and upon the recommendation of the solicitor of the treasury, the secretary of the treasury is authorized to compromise such claim accordingly." The district attorney now applies for leave, under this section, to enter satisfaction of the judgment in this case in pursuance of an alleged compromise by the secretary of the treasury of the sum or debt remaining due thereon, to-wit, $23,576, for the sum of $100. It appears from the petition that on May 27, 1877, the United States, by B. F. Dowell, commenced .an action in this court against William C. Griswold, under sections 3490-3494, Rev. St., for certain forfeitures and damages, on account of the violation of section 5438 of said statutes, in knowingly making, presenting, and obtaining payment from the treasury of the United States, in January, 1874, of certain false claims, commonly callen "The Jesse Robinson Claims;" that thereafter, on July 30, 1879, a judgment was duly entered in said cause in favor of the United States and against the said Griswold for the sum of $35,228, together with costs and disbursements, amounting to $2,875.60; .that divers sums have since been collected by execution and applied on said judgment, but there remains still due and owing thereon the sum of $::l3,576; that on November 22, 1884, the secretary of the treasury, on the report and recommendation of the district attorney and the solicitor of the treasury, compromised said claim for $100, and the release of Griswold's interest in certain property situate in Salem, Oregon, and known as "The Agricultural Works;" that said Griswold has paid said sum of money and executed said release to the United States; and that the solicitor of