any person from the negligenceofanother, the heirs of the deceased sur-
viving may have an action for slich death. There is a demurrer to the complaint, in which the first ground is that plaintiff, as mother of the men who .were killed, does not show herself to be the person designated in the statute as authorized to sue; and this appears to be on the ground that it is not averred that Martin and Hugh Brennan were not married, and that theShad no chi1<.1ren. The plaintiff does aver that she is the sale heir, the only person authorized to bring suit; and this is regarded as a sufficient statement of the fact. It is also objected that it does not appear in the complaint that the men who were killed "contributed directly or indirectly to the support of the plaintiff, or that plaintiff was interested in any manner in deceased, or that deceased suffered in any manner [that must be a mistake in the use of words] from the, n,egligent acts of defendant." In some states it has been held that it must' appear that plaintiff was dependent upon the person killed in some manner for support, but that rule has never been adopted here, and it is held to be entirely inapplicable to the action' under this statute. Counsel presented no briefs or arguments upon this demurrer. Defendant's counsel asked for time in which to present a brief, but the questions are so clear, and have been so often determined in this court, that it seems unnecessary to have briefs upon them or to hear any argument. The demurrer will be overruled, and the defendant will be allowed 20 days in which to answer.
UNITED STATES 11. THE W ALLA WALLA.
(DIBtr1.ctCourt, D. Washington, N. D. January 19, 1891.)
CUSTOMS DUTIIIS-FRAUDULENT IMPORTATION-LIABILITY OJ!', VESSEL,
Where a vessel employed as a common carrier was seized to enforce a lien tor a penalty under section 3088, Rev. St., there being probable cause for the seizure, but no charge of wrong-doing the owner, hel_ that. in the absence of rebutting evidence, t>roof that packages sU'P.posed to contain the contraband goods were received, transported, and delivered as freight in due course of business, and that the ma8ter had no knowledge with reference thereto, makes a sufficient case for the claimant, and the vessel must be released. ' (Syllabus b'il the Court.)
At Law. P. H. Winston, U. S. Atty., and P. J. O. Haines, for claimant.
HANFORD, J. In this case the steam-ship Walla Walla, engaged as a common carrier of freight and passengers on the route between San Francisco and the Puget Sound ports, via Victoria, in British Columbia, was seized on the 19th day of March,1889, to enforce a lien under section 3088, Rev. St., for a penalty alleged to have been incurred by her ter by violations of sections 2806,2807) 2809)3126) St. The cir-
UNITED S'XA'XES .11. THE WALLA WALL!..
cumstances which led to the seizure are as follows: A short time prior to the arrest of the vessel, the custom-house ufficers discovered and, seized at Tacoma two barrels containing 370 pounds of opium, prepared' for smoking, and about the same time discovered and seized at Ellensburgh three other barrels containing 530 pounds of prepared opium. The barrels seized at Tacoma were first discovered in a car en route from Ellensburgh by rail, via Portland, to San Francisco. Those seized at Ellensburgh were found in the railroad warehouse. There was nothing upon the outside of either of the barrels to indicate that they contained opium, but they appear to have been purposely disguised as to their contents. It was also discovered, and has been proven upon this trial, that in the month of February, 1889, the steam-ship Walla Walla discharged at Tacoma five ,barre1s,-two on one trip, and three on a different trip,which barrels were similar in all respects as to marks and general appearance to the barrelS seized. Manifests or way-bills' of railroad freight were also delivered at Tacoma at the time of unloading, showing that barrels of similar appearance and marks were brought in the vessel from San Francisco; one of the shipments being destined to Ellensburgh, consigned to J. Light, and the other destined to the same place, consigned to J. Dark. In the memoranda of railroad freight so delivered at Ta"sauerkraut," the coma two of the barrels are referred to as other three as containing "skid grease;" and it is also proven that neither of the five barrels were entered in the ship's manifest delivered at the custom-house at Port Townsend, as required by law, upon entering. From these circumstances a very strong inference arises that the barrels containing this opium are the identical barrels which were unladen from the Walla Walla at Tacoma, and must have been transported in the vessel either frorri San Francisco or from some other place at which she touched before arrival at Tacoma, and failure to enter such freight in the ship's manifest, as required by law, is a circumstance to justify suspicion of complicity on the part of the master in the unlnwful,importation ofthis opium; and I consider, and will certify, that there was probable cause for the accusation against the muster in this case, sufficient to justify the seizure of the ship, and to throw the burden of proof upon the claimant, as provided in section 909, Rev. St. On the part of the claimant, it is shown by the testimony of the 'purser and freight clerk, and by the ship's freight book and shipping receipts, that barrels corresponding in appearance and marks to those delivered at Tacoma were received as freight in due course of business at San Francisco, being delivered on the dock for shipment by a regular transfer company, and receipted for in the usual way, and without any circumstance to justify suspicion on the part of tbe ship's officers that the barrels contained contraband merchandise; and it is also shown that the master had no particular knowledge in regard to the cargo or the barrels in question. The master himself has testified that he had no knowledge whatever in regard to these barrels, or in regard to any freight transported upon either of the trips in question, and 110t appearing in the ship's manifest. This testimony is reasonable, anu probably true; at
'least,it' :jsiuDeontradictedby the: testimony of.: any witness, or by any circumstance, proven in the case. Just when the ·opium was put into thebarrelst-rwhetherbefore they were shipped from San Francisco, or introduced into the vessel, and packed into the baxirels atVictoria, or whether the'coritents of the barrels were changed after their arrival· at Ellensburgh-cannot be determined by the testimony upon this trial; and in either case no penalty has been incurred for which the ship, being a common carrier, can be held liable, or in anyiwayresponsible, unless there was complicity in the smuggling of .tbeopium on the part of her master or owner. 21 St. U. S. 322; The Barlltoga,'9 Fed. Rep. 322. As to ,the owner, the libel of ·info1'tnation does not charge such complicity "and there is nothing in either the pleadings or proofS to raise an issue :or justify inquiry.. ' The question as to guilty knowledge of the master is the one of chief importance, upon the answer to which the decision of the case must be predicated a.nd to this I find that it is shown, by a clear preponderance of the 'evidence, that Capt. Blackburn did not at any time have any knowledge whatever as to the barrels mentioned or their contents. Let there be findings accordingly, and a decree in iavor of the claimant.'
". SEVEN HUNDRED· AND FORTY
(Dtstrtct Oourt, D. WaaMngton, N.
CaSTOMS DUTIES-FRAUDULENT IJIPORTATJONS-EVlDENC_FoRlI'ElTURB.
In a suit to condemn merchandise as forfeited under section 8082, Rev. St., for baving been fraudulently imported, where the proofs on the trial show probable cause for theileizure, and the claimant makes no offer to explain damaging circumor from whom he, acquired the ownership he stances, andshpw wnell, claims, such withholding of evidence. is a circumstance sufficient to complete the case for the government., under section 909, Rev. 51;. (SuUalru8 bJJ the· COU1't.l
At Law.! P ·.H. Winston, U. S.Atty., and P.O. Sullivan, Asst. U. S. Atty. A. R. Cblmp.a1l, for claimant.
HANFORD, J. This is a case of seizure under section 3082, Rev. St., the merchandise alleged to be contraband being the 370 pounds of prepared opium Teferredto in my opinion in the preceding case, (United States v.' 'I'M ·Wttlla WaUa,tInlte, 796,) the circumstances connected with the discovery and seizure of which are stated in that opinion. After ·this suit was commenced, and notice of the seizure published, the claimant appeared.flled his claim as owner of the property, and answered the information, denying that the merchandise was of foreign growth and· blanufaetute, and that it was unlawfully imported into the