¶1(in the absence of CRANCH, Chief Judge) had decided that it was not necessary that the magistrate who takes a deposition under the act of congress, should certify that he is not counsel for either of the parties. It having been proved that the usual course of trade to Curacoa was to enter and clear by short invoices, so as to evade the payment of duties, and that this course was winked at by the revenue officers of the place, the plaintiff offered evidence that the defendant Veitch had given him orders to that effect, in former voyages, in order that the jury might draw an inference that similar orders had been given to the plaintiff in the present case.
¶2THE COURT (CRANCH, Chief Judge, contra) admitted the evidence.
¶3Mr. Taylor, for plaintiff, objected to the defendants’ depositions that they did not appear to have been taken in this cause, the names of three of the defendants having been omitted in the caption.
¶4THE COURT (nem. con.) rejected them on that ground.
¶5E. J. Lee and Mr. Swann, for defendants, contended that the money was paid in an illegal transaction, and therefore could not be recovered, and prayed the court to instruct the jury that if they should believe, from the evidence, that the plaintiff had violated the law of Curacoa, and thereby subjected the cargo to seizure and condemnation, and that the plaintiff paid to the revenue officer the sum of $4,000 to release the vessel and cargo from such seizure and condemnation, the plaintiff had no right, in this action, to recover any part of the money so paid.
¶6*410Which instruction THE COURT (nem. con.) refused to give, because the prayer did not state that the payment of the $4,000 for the release of the vessel and cargo, was contrary to the law of Curacoa, or in violation of the duty of the officer who received it; although the seizure was for a violation of the law of that place.
¶7Mr. Jones, for plaintiff, then prayed the court to instruct the jury, in substance, that if the plaintiff acted in conformity with the defendants’ instructions, and according to the usage and course of the trade, in making the short entries which caused the seizure, and that by paying the $4,000 he made a saving to the defendants of more than double that sum, and that the payment was necessary to preserve the vessel and cargo to the defendants, the plaintiff was entitled to recover in this action the money so paid.
¶8Which instruction THE COURT refused to give,. unless with this proviso, that it should not appear to the jury, by the evidence. that such payment was contrary to the laws of the island of Curacoa.
¶9E. J. Lee, for defendant, then prayed the court, in effect, to instruct the jury that if they should believe, from the evidence, that the $4,000 were paid to the revenue officer of Curacoa as a bribe for releasing the vessel and cargo without the knowledge or consent of the governor of the island, the plaintiff had no right to recover, in this action, any portion of the money so paid.
¶10Which instruction THE COURT (THRUS-TON, Circuit Judge, contra) gave as prayed.
¶11■ Bills of exception were taken, but no writ of error prosecuted.
¶12Upon the question whether the illegality of the payment should prevent the plaintiff from recovering, the defendants’ counsel cited 1 Esp. N. P. 89. 21, and 23: Mabin v. Colson, 4 Dall. [4 U. S.) 298; Belding v. Pitkin, 2 Caines, 147; and the plaintiff’s counsel cited Holman v. Johnson, Cowp. 341: Biggs v. Lawrence, 3 Term R. 454; Waymell v. Reed, 5 Term R. 509, and Esp. N. P. (Am. Ed.) 20.