UNITED STATES 11. DE GOER. l
(Distriot Oourt, S. D. New York. February 21, 1889.)
ABATEMENT AND REVIVAL STATU'l'ES. ,
FORFEITURES UNDER REVENUE LAWS -
SAME-REVENUE CASES-COMMON.LAW RULE.
S4M:E-REVENUE CASES-DEATH OF PARTY.
Suit having been brought in 1862 for forfeiture of the value of an importation of gloves for fraudulent under-valuation, under section 66 of the act of 1799, (1 St. at Large, 677.), and. upon defendant's default, an assessment of damages made, and a judgment entered after his death. which was set aside on motion as irre!('ular. upon s(',ire facias to revive the action against his administrator, lteld,that the act of 1799, though in part remedial, was mainly punitive, .andin this case hip;hly penal; and the action for forfeiture, not bemgdivisible, as respects the actual pecuniaryloss to the government, W!loS subject to the generalrule, and abated by the defendant's death.
Scire Facias to Revive Action against Administrator. 1861 and 1862 the defendant made five importations of gloves to · this port, lYhich were e.nteredby him at the custom-house, and received · for consumption. Iri August, 1862, a suit was commenced against him for the sum of 833,644.60, their value. alleged to be forfeited to the government under section 66 of the act of 1799 (1 St. at Large. 677) for fraudulent under-valuation. Defendant appeared, but no answer was 'ever filed, and nothing further was done in the suit until after the death of the defendant, in March, 1877. In October, 1877. the United States attorney, in ignorance of the defendant's death, and upon affidavit of his default, assessed the damages, and entered judgment for $68,229.55. 01'1 August 7, 1888, upon motion of the defendant's administrator, the ,jud;;ment was set aside and vacated, as being irregularly entered after the defendant's death. A counter-motion for leave to enter the judgment nU1tc pro tunc, as before his death , was dtmied. A writ of scire facias was ·thereupon issued, directing the administrator to show cause why the suit should not be revived against hnn administrator of the deceased defendant. Stephen A. Walker, U. S. Atty., and Abra.m J. Rose, Asst. U. S. Atty. Griswold, Deuel & Griwold, for the administrator.
BROWN, J., (after stating the facts as above.) This action is for the forfeiture of the value of gloves imported by the deceased, for alleged fraud1 Reported
by Edward G. Benedict, Esq., of the New York bar.
UliIITED STATES II. DE GOER.
ulent under-valuation. Section 66 of the act of 1799 (1 St. at Large, 677) provides that if goods imported and entered are not "invoiced aecording to the actual cost thereof, * * * with design to evade the duties thereupon, or any part thereof, all such goods, * * * or the value thereof, to be recovered of the person making entry, shall be forfeited." By section 91 of the same act (page 697) the amount of the forfeiture so recovered, after deducting costs and charges, is to be distributed, one-half to the use of the United States, the other half to the collector, naval officer, surveyor, and informer. The declaration, filed October 4, 1862, alleges the importation and entry of the gloves by the defendant; that the goods in the several invoices thereof "were not, nor was any part therp-of, invoiced according to the actual cost thereof, but at a much less price, with the design on the defendant's part to evade some part of the duties due and payable on such goods;" and that the goods .were worth in the aggregate $33,644.60, for which judgment was demanded. The action manifestly belongs to the general class of actions for therecovery of penalties and forfeitures. As such, under the early maxim of the common law, it would die with the person,-actio personalis moritur cumpmona. The statute of 4 Edw. III., c. 7, called the statute de bonis awportatis in vita testatoris, greatly limited the effect o,f this maxim., and gave actions to executors for trespal:is to their testators' goods and chattels. In many, if not all, of the states of the United States, there are also additional statutes that very much limit the application of the old comman-law rule. By th e statu te of Massachuset ts actions survive for damage done to the real or personal estate; by the statute of New York (2 Rev. St. p. *448, § 1) actions survive" for wrongs done to the property, rights, or interests of another, for which an action might be maintained against wrong-doer." Under these statutes it is held that negligent injuries to a wife, who was a passenger on the cars, which caused expense and loss of her services, was a wrong to the husband's rights and interests, which survived, (G'regin Y. Railroad Co., 75 N. Y. 192; see, also, Norton Y. Sewall, 106 Mass. 143;) so, an action for fraud by the grantor on the sale of land, (Haight Y. Hayt, 19 N. Y. 464; Cheney v. Gleason, 125 Mass. 166;) but actions for penalties not based upon the theory of affording compersation to the injured parties for damages sustained, do not survive, (Stokes v. Stickney, 96 N. Y. 323;) nor for special damage through a libel,(Cummings Y. Bird, 115 Mass. 346;) nor an action for breach of (Wade v. Kalbfleisch, 58 N. Y. 282; see 22 Amer. promise of Law Reg. 353; 425.) There is no statute of the United States providing what causes of action shall or shall not survive. Section 955, Rev. St. U. S., merely provides for the course of procedure "in case the cause of action survives." The question here is to be determined, therefore, according to the nature it, In those causes ofae.of the'cause of action, llndthe law that tion that arise under the state laws, or are subject to their operation, the law of the state .will determine the question; in other cases it must be '<letermined'by"theprinciples oLthe common law, as recognized andagminisv.38F.no.2-6 .,
FEDERAL REPeaTER, vol. 88.
tered in the federal courts. The' case of Hatfield v. BuihneU, l' Blatchf. 393, was a case of the formerclassj where the action was to recover lands claimed by an alien; and, as it arose in Vermont, and was subject to the law of that state, it was held to survive, in accordance with the provisioJ;ls of the state law. ' But causes of action arising out of the revenue laws of the United States, or, like the present, founded solely upon federal statutes, are manifestly not subject to state legislation. The question is not one of the form or mode of procedure in enforcing a right, but of the.existence of the right itself, after the defendant's death. Upon these grounds it was held in the case of Schreiber v. Sharpless, 17 Fed. Rep. 589, no U. S. 76, 3 Sup. Ct. Rep.. 423, which was an action brought under section 4965 of the Revised Statutes to recover certain sums" forfeited" by defendant fat copying and printing plaintiff's right photograph, that the statute of Pennsylvania, where the cause of action arose, had no application; and that under the federal law the cause of action abated by the defendant's death, and could not be re' The revival of the action in this casecanll0t,therefore, be based upon the provisions of the statute of New York. Independently of the state statutes, a distinction is recognized at mon law between cases where the derives some benefit by his wrong .from the injured person's estate, and cases unaccompanied by such benefits or injury to property interests. Thus, in Hambly Trott, 1 Cowp. 376, Lord MANSFIEW says: "Where; besides the crime, property is acquired which benefits the testator, there an action for the value' of the property shall survive against ·theexector. * * ,* So far as the tort goes, an executor shall not be liable; and ,it is that all public and all private crimes die with the offender, ,and the executor is. ,not chargeable; but so far as the act of tqe offender, is beneficial, his assets ought to be answerable, and his executor shall therefore. be 'charged." U; 8. v. Daniel. 6 How. n, 13; Jones v. Vanzandt, 4 McLean, 604. ' Some cases the punishment of offenses is' by reserving to for the actual injury the injured person his right of action for to him, or by forfeiting a specific sum to be paid to him by way of civiI damage for injury to his property rights, in addition to other ment for the public offense; as in the punishments provided by the laws of 1793 and 1850 for aiding in the escape of fugitive slaves. See Norris v. Crocker,13 How. 429, 438, 440. In such cases, w:here compensation for injury to property is either reserved or specHically provided for, 'the cause of action, as to that part, might possibly be held to survive. Statutes punishing fraud on the revenue are in pai.'t remedial, not simply"and purely penal statutes; ,and for that reason they are not construed with the strictness of peJ;l1l1 fOtatutes. In Ta.ylor v. U. S., 3 How. 197, 201, STORY, J., says: " '."Laws enacted for the prevention offraud, for the suppression of a public wr6'ng, or to effects public good. are not, in the stdctsense. penal acts, al'though. they inayinflict a penalty for violating them. It is in this light I view the''tevenue laws, and I would oonstrue them so as most effectually to accomplish the iutentibn of the legislature in passing them." ,
STATES V. DE,GOER. ,
,See,alsoi, U. S.v. Thirty-Sirx Ba,rrel8 of 7 Blatc4f' 459'. In Stocl;wdlv. U. S., 13 Wall..531, thesecoJ;lcl section,ofthe!lct of Ma;rch Which condemned persons. co.nvicted "to forfei t and pay a sum double the amount of the value of the goods concealed," etc., was held so entirely remedial 11S not to be repealed by the act of July, 1866. In the subsequent case of U. S. v. Claflin, 97 U. S. 546, however, it was considered that both statutes were alike designed to be punitive as well' as remedial. A consideration of the numerous provisions of the statutes, from the act of 1799 downward, forfeiting goods or their value, or specific sums, for offenses affecting the revenue, shows that these statutes, as a class, remedial in part, are mostly highly penal. Generally the amount the forfeiture is out of all proportion to the pecuniary loss incurred, or case. A whole likely to be incurred, by the government in the. invoice, as in this instance, (until the act of 181,4,) was liable to forfeiture for a false statement in a single item. The heavy forfeitures imposed are designed more to prevent the commission Of offenses than to afford mere compensation or indemnity to the government, or to the injured party. 11'1 the case of StockweU v. U. S., 8upra, the goods, under .the act of 1823, became the property of the government.. By the concealment of the goods, the government would lose its property, Much emphasis was laid upon this circumstance. In the present case the forfeiture was in the alternative, viz., "of the goods or their value," and in such cases there is no forfeiture, and hence no property in the government, unless and until the government makes its election to pursue the goods, which in this case it did not do. See cases cited in U. S. v. Auffnwrdt, 122 U. 7 Sl,lp. Ct. Rep. 1182,19 Fed. Rep. 901. No division of a gross sum forfeited can be made, so as to distinguish the government's actual loss, if any, from the satisfaction for the public .offense. The recovery must be for the whole value of the goods Or although the excess over the entered value may be but a small percentage. No precedent has been shown for reviving actions upon .forfeitures that are mainly penal, to some extent remedi.al. The instances of the death of defendants in such cases must have been numerOUSj and the .absence of any precedent for revival of such actions is of no small weight as evidence that no such right in this class .of cases has ever been Besides the customs and internal revenue statutes, supposed to there are many provisions for forfeitures in the laws relating to navigation and .to patents, in some of which the !iums forfeited have manilest reference, in part, to compensation to persons whose pecuniary rights have been violated, to the profit of the wrong-doer. The case of &hreiber v. Sharyle88,above cited was of precisely this kind. Section 4965 forfeited certain sums tor every copyrighted photograph, etc., which should be illegally man1;lfactured or sold, etc., one-half 9f the sl1mforfeited "to go to the and the other half to the use. of the United States." propriet.or" was by .There can be no! doubt that this .provision fQr that statute intended in part as compensation or'indemnity,to him, quite as m.uch as forfeiture by the revenue Jaw!? in .part
signed for indemnity to the United States. The decision of the supreme court, therefore, in that ease, seems to me decisive of every legal question involved in the present ease, an:d the writ must therefore be quashed.
(Oif'cu# (Jourt, D. Ma88achu8ett8.
March 12, 1889.)
ANDNAVy-MrLITARY TRIBUNALS-JURISDICTION-REVIEW ON HABEAS CORPUS.
On habea8 CO'l'pU8, the United States circuit court has jurisdiction,to'determine ,w,hether the military tribunal which tried the petitioner had jurisdiCtion; and the general finding_of the military court that the petitioner was in the military service of the United States when he committed the crime of desertion, for which he was tried, is no har to an inquiry into the military court's jurisdiction.
By Rev. St.U. S. § 1116, men must be between the ages of 16 a'nd 35 In orderto be proper subjects of military service. Petitioner was morethail 40 at the. timtl of enlistment. He did not enter into any service. or discharge any duties as a soldier. but left the recruiting office. or was. permitted t'O depart, a.nd was not in the actual control of the military officers till his arrest for desertion, Held, that the enlistment was void. as the petitioner was'not a proper subject of military service. and that the military tribunal had no jurisdiction. ..
Appeal from District Court. . '. . Petition of John Grimley for habeas corpus. Fl'om an order of the district judge discharging the prisoner, respondent appeals. Hm1:ry W. Putnam, for petitioner. Thcmws a. Talbot, Asst. U. S. Dist. Atty. COLT, J. The case In re John Grimley arises oil writ.of habeas corpus, and comes hereon an appeal from the district court. The first an,d mostiinportant issue in the case raises the question of the jurisdiction of the military tribunal who tried the petitioner. Section 1116 of the Revised Statutes requires that men must be between the ages of 16 and 35 in order to be proper subjects of military service. It turns dut in this case as a matter of fact that this petitioner Was InOre than old at the time of his alleged enlistment. · It is not daimedthat he en:tered iilto any service, or discharged any duties,asil. soldier. Whatever took place in the recruiting office at the time of his alleged eidistment, Grimley left the office, or was permitted to depart, and was not thereafter inthe actual control Of the military officers till his arrest ohthe charge 'Of desertion. This is not the case of a person who, after some form of enlistment, has entered upon actual service in the army, and has deL parted therefrom; The jurisdiction of the military tribunal in this case depends upon the validit.v of the enlistment alorie. Now, leannat but think that under these circumstances the fact that Grimley was over 40