UNITED STATE8 V.' THREE' TRUNKS.
,alley. " Although he died with the second codicil unchanged, as he wrote it in January, 1875, did he intend that the$20,OOO.which he. had paid to thos& two institutions between the date of that codicil and the time of his death should be deducted from the $40,000 which he had given to each, or that the bequest should remain as though he had not paid the $10,000 to each in January, 1876? It seems to me, the general scope and purpose of the original will, as .well as the first and second codicil, together, that the language of the original will, by which any donation made during his life-time was to. be deducted from the legacy and. bequest' in favor of such institution, ought to be considered as applicable to the bequest in the second codicil to Hamilton and Yale Colleges, and therefore a deduction should be made of the amount which he had paid to each between the date of the second codicil and the time of his death.
UNITED SUTEB 'V. THREE TRUNKS,
(Di,sflrictCourt, D. Calijorrda.
relates to the importation of merchandise into the Uriited States from abroad, the government must show affirmatively an "actual intention to defraud," under section 16 of the act of June 22,1874. .
Where a libel for information was filed against n vessel's boatswain to enforce a forfeiture, under section 2809 of the Revised Stat\ltes, for attempting to im. port foreign goods without entering them in the.yessel's manifest, held, that it must be dismissed, in the absence of any attempt at concealment sind in view of the fact that the practice of making such importations had been tolerated and apparently recognized as legal by the custom-hQuse officials, and the further fact that the boatswain, a native of China, had no reason to suppose that he was thereby violating the law.
HOFFIIfAN, D. J. The libel for information in this case is filed to enforce a forfeiture under section 2809 of the Revised Statutes. That section is as follows:
" If any merchandise is brought into the United States in any vessel whatever from any foreign port without haVing such a manifest on board. or which shall not be included or described in the manifest, or shall not agree therewith, the master shall be liable to a penalty equal to the value of such merchandise not included in such manifest, and all 8uch merchandise not included
in the manifest, belonging or consigned to the master, mate, 0ffice1's, or crew of such vessel, shall be forfeited."
The goods seized were three trunks or cases of silk handkerchiefs. They were found in the boatswain's room, and are claimed by him as his own. They were not entered on the manifest. But there does not appear to have been any attempt to conceal their presence on board from the master or the officers of the customs. The omission to describe the goods in the manifest was not the result of mistake or accident. There does not appear to have been any intention to so describe them. They were imported under the idea that the importation was permittted by law, provided the duties were paid on the arrival of the vessel. The importation was, however, clearly illegal, and the facts of the case bring it directly within the provisions of the section which has been cited. It is claimed, however, that the forfeiture denounceJ by sedion 2809 cannot be enforced unless it appear that there was" an actu,al intention to defraud the United " Section 16 of the act of June 22, 1874, in substance provides that in all suits to enforce forfeitures, etc., for any violation of the customs revenue laws"It shall be the duty of the court to submit to the jury, as a distin(;t and separate proposition, whether the alleged acts were done with an actual intention to defraud the United States; and if the issues are tried by the court without a jury, it shall be the duty of the cOllrt to pass upon and decide such proposition as a distinct and separate finding of fact; and unless intent to do fraud shall be so found, no forfeiture, etc., shall be imposed."
The laws of the United States regulating commerce and navigation are necessarily rigorous in their exactions, and highly penal. They inflict forfeitures and penalties for the non-observance of their injunctions without regard,in general, to the motives of the offender. Conk. Treat. 739. Their severity, however, was, from a very early period in the history of our government, tempered by enactments which permitted the offending or interested party to cause a summary inquiry into the facts of the case to be instituted by the district judge, by whom the facts so ascertained were to be reported to the secretary of the treasury; and if, in the opinion of that officer, the penalty or forfeiture had been incurred" without wilful negligence or any intention to defraud," he was authorized to grant a remission. These provisions were supposed, until a comparatively recent period, to afford ample protection against the rigorous application of the laws-to cases of accidental and innocent violation of their provisions. The power of remission confided to the secretary has been freely and liberally exercised; nor can I recall an instance where a remission has been unreasonably or unjustly withheld.
UNITED STAT;ESV. THREE TRUNKS.
When the violation of the law is admitted or judicially established, the burden of proof is very reasonably cast upon the offender to show that it was committed without wilful negligence or intention to defraud. And in permitting a remission after such proof is furnished, the act went as far as justice or reason requires, or· as is consistent with the efficient execution of the revenue laws. But by the sixteenth section of the act of 1874, which was passed under very exceptional circumstances, the burden of proof to show an "actual intention to defraud the United States" is thrown upon the government, and unless that intention is found by the jury or court "as distinct and separate proposition," no penalty or forfeiture can be imposed. It is not sufficient under this section that the intention of the party may have been fraudulent. The court or jury must find 'that it was so in fact·. This finding they can only reach when the proofs preponderate in its favor. Ina11 cases, therefore, w,here the government fails to show affirmatively an "actual intention to defraud," judgment must be against it. In the case at bar it is established beyond controversy thltt for a long series of years the practice of importing goods by the officers and crews of steamers, without entering them on the manifest, has been tolerated, and apparently recognized as legal, by the customhouse authorities. The duties on such goods, when declared by the importer or found by the officers, have been paid and accepted, nor has the penalty imposed on the master ever been exacted or the goods seized,· except when they were concealed with an evidently fraudulent purpose. It seems to have been supposed that the laws and regulations with regard to dutiable goods found among the personal baggage of passengers, could be applied to unbroken cases of merchandise imported by the officers and crews. That this practIce opened a wide door to fraud is evident, and the seizure now in question is an attempt by the present collector to put an end to it. There can be no question that in many instances tri.ese importations, thus sanctioned by the officers of the revenue, have been made without the slightest intention to evade the payment of duties, or suspicion of their illegality. In many others they have been made with the design of smuggling the goods if opportunity offered; a design which has, no doubt, in verynumeroUB cases been accomplished. To which of these categories the importatation of the goods in question in this case is to be referred, I have no means of knowing. It has already been said that no concealment of them was made or attempted. The importer, a Chinese boatswain,
THE KETCHUM HARVESTER 00.
THE JomiSON HARVESTER liO.
(OVrcuit· DOUTt, N. 'D. ,New York.
LETTERS PATENT-MANUFACTURE FOR SALE AmWAD-INFRINGEMENT·
. Every manufacturefo,r sale aQroad, followed by actual sale, of a machine on which an American patent has been issued, is an infringement of the American patentee's rights of property and exclusive use.
Spencer Clinton, for plaintill. Ward Hunt,. Jr.; for defendant. BLATCHFORD, O. J. . I think the prOVISlOns of the decree. as to license fees,in connection with the testimony, are sufficient to authorize the finding of a license ·fee of five dollars for each machine with a concave wheel made and sold in the United States, and one of $2.50 for each machine with a concave wheel made in the United States for sale abroad and sold abroad. A-Ithough the patent could give no protection abroad in the sale of machines abroad, it gave protection in the United States in making machines III the United States for sale abroad. The patent prevented all persons but the patentee from making in the United States. The privilege of mak·