author: Mr. Justice Story

text:
    Thomas Wood, Junior, Claimant of twenty-two Packages or Pieces of Cloth, Plaintiff in error, v. The United States, Defendants in error.
    .'he United States filed in the District Court of the United States, for the Maryland district, a libel of information, in rem, upon a seizure upon land, in the district,'of twenty-two pieces of cloth imported into New York, and claiming .them as forfeited. . The libel contained many counts, but that on which the decision of the Supreme Court was given, was founded on .the sixty-sixth section of the revenue act of 1799, which ■ declares that any goods which shalpnot be invoiced according to the actual cost there-. ■. of at the place of exportation, with design to evade the du{ies thereupon, all such goods, &c., shall beforfeited.' The count stated that the goods were'not invoiced at the actual cost at the place of exportation. The duties had been paid at New York, on the •invoice, produce! on their éhtry}' They Were afterward's transmitted to Baltimore, . and were there seized in the stores of certain persons, having the custody thereof for the importer, who was the claimant, under a search-warrant, procured from a-magifftrate.' To establish the fraud hi the invoices, the United States offered in evidence sundry other invoices of cloth and cassimere, imported into'New York by and consigned to the claimant, to show the fraudulent intention of the claimant in those importations as well as in the present. This evidence was objected to, aild the objection was overruled. The District Judge, after the whole evidence was gone through, gave the following instructions to the jury. 1. That the issues found, and which the jjfry are, sworn io try, involve no question except' upon the causes of forfeiture alleged in the information and traversed; and therefore no question relating to the mere ¡seizure of the', goods is in issue, or material under the pleadings. 2. If the ' jury shall find from the evidence in the cause, that the invoices of the goods proceeded against, wete'made up with intent, by false valuations, to evade, or defraud ’ the revenue, the United States are entitled to recover, although the jury should'also find from the evidence that the goods had been passed through, the custom-house at New York, by the collector, and the duties calculated by him on the invokes shall have been paid, or secured to be paid, and the goods delivered by the collector to the importer. 3. That under Certain counts in the information, probable cause for the prosecution had been shown, by the United States; and that the burden of prpof, Under.the seventy-first section,pf the act of 2d of Maroh, 1799, was upon the claimant ; and that it is incumbent on. him to prove to the jury, that the charges in the five counts, charging fraudulent importation, are untrue; that is, that he shall prove the truth of .the.invoices on which the goods wefe ente'ed, and that the invoices and packages were not made up to-evade or defraud the revenue. 4.. That the burden of proof being on the claimant under the seventy-first section of the act of 1799, and the fifteenth section of the act of 14th July, 1832, it is incumbent on him to prove the actual costof the■ goods in the invoices and entries stated to have been purchased by him; and that the value of the goods at the time of the seizure, or at . any subsequent time, is not material, except so far 'as to assist or tend to enable the jury to ascertain the prices at the periods of purchase or shipment -5. That the burden of proof being upon the.claimant, to prove that the invoices were not made tip with intent to defraud the revenue, it is not sufficient for him to rely on the invoices themselves, merely, as proving their own truth and fairness. The case, was removed by writ of error to the Circuit Court, and there a judgment, affirming the judgment of the District .Court, having been entered, the claimant prosecuted a writ of error to the Supreme. Court.
    Held, first: That the instructions of the District Judge as to’the original seizure,-or the causes thereof,-were correct. ’ Jt is of no consequence, whatsoever, what were the original grounds of the seizure, whether founded or not; if. the goods were in point of law subject to forfeiture. The United States are not bound dovjn by the acts of the seizors to the causes which influenced them in making the seizure, nor by any irregularity on their part in conducting it, if the seizure can be maintained as founded on an actual forfeiture-at the tíme of the seizure, tt was rightly held in the District -Court, that no question afóse on -the issues which the jury were to try, except upon the causes of forfeiture alleged in the information.
    Second: There was no' error in the admission of the evidence'of fraud deducible from the other invoices offered in the case. The question was one of fraudulent intent, or not, and upon questions of that sort, where'the-intent’of the party, is the matter in issue, it has always been allowable, as well in criminal as in civil’cases, to introduce evidence of other acts and doings of the party of a kindred character, in order to illustrate his intent nr motive in the particular act directly in j> dgmant.
    Third: If the invoices of the goods were fraudulently made, by a false valuation to evade or defraud the revenue, the fact that they wére entered, and the duties having been p.aid or secured at the custom-house at .New York upon these invoices, was no bar to the ■information for the. forfeiture of the'goods to the United States/ It never can be permitted, that a party who perpetrates a fraud upon the custom-house and thereby enters his goods ppon false invoices and false'valuations,’ and gets a regular delivery thereof upon the payment' of such duties as such false invoices and false valuations require, can avail himself of that very'fraud to defeat the purposes of justice.
    The sixty-sixth section of the revenue collection act of 1799, ch. 128, remains in full . force.
    There must be a positive repugnancy between the new and old láws for the collection of the revenue before the old law can be considered as repealed; and even then, -the old law is repealed by implication only,-pro tanto, to the extent of the repugnancy. The addition of other powers to custom-house officers to carry into effect the object of the former laws, and sedulously introduced to meet the -case of a palpable fraud, should not be considered as repealing the former laws. There ought to be a manifest and total repugnancy in the provisions of the later laws, to lead to the conclusion that they abrogated, and were designed to abrogate the former laws.
    The burden of proof in the absence of fraud in the entry of the goods was thrown upon the claimant. There was probable cause'for seizure shown. Probable cause must, under the seventy-first section of the act of 1799, in connection with the circumstances of this case, mean reasonable ground of presumption that the charge is or may be well founded.
    IN error to the Circuit Court of the United States for-the dis trict of Maryland.

      At the District Court of the United States, for the district of, Maryland, on the'97th day of December, 1839, the United States' filed an information claiming a forfeiture of tWenty-two pieces of cloth, of ; the value of twenty-five hundred dollars.- The. information .contained nine counts.. Afterwards, and before the trial of the cause before a jury, a discontinuance was entered by the district-attorney of. the United States, of the first, second,-third, .fourth, and fifth counts. The cáse was tried before a jury in July, 1840, on the remaining counts in. th<? information ; and a verdiét arid, judgment were rendered in favour of the United States. The' claimant took- a bill of exceptions to the charges of the Court, and prosecuted a writ of error to the Circuit Court, in that Court, á judgment was entered, pro forma, -in favour of the. United States; and the case was'brought by the claimant, Thomas Wood, by writ of error to the Supreme Court.
    The information'filed by the United Stktes, in the District-CoUrt, in the third- count, on the sixty-sixth section of the collection act of 179.9 alleged that the goods were not invoiced according to their actual .post at the port of exportation; with design to evade the duties thereon. The sixth, seventh, and eighth oounts on .the -fourth section of the supplementary act- of .1830, and, the', ninth count on the fourteenth section Of the act of 1832, alleged) under different-forms of statement, that the invoices on which the goods-had been entered, and-the packages containing them, had. been made up with intent to evade or defraud the revenue.
    The defendant’s first -plea was a denial-that the goods had been seized for the same causes Of forfeiture'alleged in the-information. The second plea set forth certain warrants issued under the.-sixty-. eighth section of the act of 1799, authorizing the search for and seizure óf goods entered without permits and concealed in certain stores in Baltimore, and alleged that the seizure was made unáer these warrants and not under any other authority or for any ■'other cause than that which was contained in them. The third plea alleged that the goods in question were imported into New York, and duly entered, and unladen under regular permits; that in order to ihe. ascertainment of the duties, the collector caused them to be appraised according to their actual value at the time and place' of exportation, and also caused one .package out of ■ every invoice, and one package out of every twenty packages of each invoice, to be opened and examined; and that the packages so opened and examined were found ánd reported to the collector to be correctly and fairly invoiced and put up; that, after said examination and appraisement, the duties on the goodá were duly ascertained and estimated by. the- collector, and paid by the claimant; that they were then delivered to the claimant and .were shippéd'by him to his agents in Baltimore; and’that, whilst in possession of said agents, they were seized by the collector of the port of Baltimore, as alleged in the information.
    To each of these three first pleas the’ United States demurred generally, and the Court below -being of opinion that they contained no matter of defence to thé information, gave judgment in favour of the- United States on the demurrers.
    . The remaining pleas were in succession applicable respectively one to each Of the cofints/of-the. information, and, were siinpk traverses , of the respective causes of forfeiture alleged in them. Issue was joined on each of those pleas.- These, which were the only issue's of fact tried,,resulted in a general, verdict for the. United States; on which a judgment of condemnation was after-wards entered as above' stated.
    It appeared by the bill of exceptions, that at the trial, the United States, to maintain the issues on their part, re.ad in evidence to the jury, four entries and,' invoices, which, it was admitted, were original entries and invoices/ and -had contained the .twenty-two pieces of cloth against which the information was filedj and it was admitted that the numbers now. on said pieces are the same •that they were when imported, and have, not been'changed or altered; that the said four invoices were severally passed through the custom-house of the port of New York, according to the forms prescribed by the acts of Congress; and- that, with one exception, the said twenty-two pieces were included in the. packages designated by the collector'of New York to be opened and examined. And if was further admitted and agreed that the duties on,the amount of each of said four invoices had been paid, according to the prices therein stated; and that the goods therein mentioned had been delivered under regular permits to the claimant, who afterwards shipped the twenty-two pieces taken from several, of the original packages included in said four invoices, to the consignment of Beadell and Company, at Baltimore, for sale..

      ■ It also appeared by the evidence .on the part of the United States,.that' the claimant had entered at the port of New York, in the years 1839 and 1840, twenty-nine importations, of which, those in question were a part, Twenty-eight of these importa-, tions, including .the four in question, were entered by him, and upon his oath, as goods of which he was the actual owner, by having purchased them for exportation from the party by whom they were invoiced to him. Of these importations, the four which included the twenty-two pieces in questioh, were entered in 1839. Fifteen- importations had been previously made, and ten were made after these four importations. All of the'twenty-nine entries were accompanied -.by invoices. From the aggregate gróss apparent cost of the goods in these invoices, some of which contained cloths alone, and others both cloths and cassimeres. there was'a deduction in every invoice of five per cent., in some cases described to.be a discount for cash, in others for measurement, and in- two without stating for what. It was.in proof-by persons conversant with the British market, that, by the course of business in the places where the goods purported by the invoices to have been .bought; no such discount or deduction was ever allowed on cassimeres; whether invoiced separately or included in the same ipvoice with cloths. It was also proved, by persons well acquainted with the same markets at .the time of the alleged purchases, that the goods could not at that time have •been fairly bought for less than prices which exceeded, by a .large per centage, the prices mentioned in the invoices: and, with a view to show further, that the invoices were fictitious as to the ■prices, and that the discount was fictitious, it was proved that, in every one of his importations made after the seizure of the goods in question, the' claimant acquiesced without appeal or objection, in the acts of the assistant appraisers of the customs and their assistants, in disallowing a similar discount or deduction of five per cent., and in raising the amount of their appraisements considerably beyond the prices mentioned in the invoices.
    Before the evidence was given on the part of the United States,' the counsel of the claimant objected to the admissibility in evidence of the invoices of the other goods imported by the claimants as above,, before and after the importation of the goods in question, and- of the oral testimony offered as above, in connection with them. “But the Court overruled the objection, being of opinion that the question in the cause was ,a question of fraudulent intention; the inquiry being whether the invoices of the goods in controversy were made up with, intent to evade the act of Congress, and defraud the revenue; and that the acts.of the claimant in passing other goods through the qustom-house are evidence.”
    This opinion formed the subject, of the first exception -of, the claimant, on which he-now insisted in this Court. 1116 second exception'was to-the refusal of the Court-below to give to the jury the instructions requested,by the'counsel of the claimant, and also to the instructions given by the Gourt-to the jury.
    To understand the character and extent of this exception, it is neeessary to introduce the prayers of both parties for instructions to the jury, with the answers of the Court. T^e United States, by their counsel, prayed the1 Court for its opinion -and direction to the jury:—
    1. That, the issues-which the jury are .sworn to try, involve' no questions expept .upon the causes of forfeiture alleged and traversed;. therefore, no question' relating to, the seizure of. the goods is-Jii issue,, or in any respect material upon’the pleadings in this case.
    2. . That if the, jury find, from the evidence in this cause, that the invoices which contain 'tlie goods now in controversy, were made up within-intent to eváde\or defraud the revenue of the .United States, the United States are. entitled' to. condemnation of the said goods; although the jury should also find'from the .evidence, fhat the said good? have .been passed through.,the customhouse, at New York, by the collector thereof, or by the appraisers, or other officers of the cústóms, and the duties calculated thereon been paid, or secured to be paid, and thé said goods delivered by the-said collector to the importer.
    3. That there has been shown, on the part of the United States,, probable cause for the prosecution, under the third, si±th;’seventn. eighth, 'and ninth counts of the information; and, therefore; Under the seventy-first section ot tne act of 2d.Match,' 1799, the burden •of proof lies upbn Thomas Wood,-Jr., the claimant ; and it is incumbent on him to prove to the jury" that the charges in’the said five counts of the information are untrue, that is, to,prove;Jhat the goods .in question were invoiced according to their actual cost at the place of exportation, and that the invoices and packages were not made up with intent to evade or defraud the revenue.
    4. The burden of proof being upon'the claimant, to prove that the invoices were not made up with intent to defraud the„revenue, that it is not sufficient fór him to rely upon the invoices merely, as proving their truth and fairness.
    5; The burden of proof being upon the claimant, it is incumbent on him to prove' to .the jury the actual cost of the goods in question, and that. he floes not relieve himself of this burden of proof by evidence of the' mere value of said goods, except so far as such value may tend to show actual cost.
    And the claimant, by. his counsel, prayed the Court to give the following, instructions to the jury: — .
    1. That under a true construction of the seventy-first section of the act of Congress of the 2d of- March, 1799, if is incumbent on the United States to show, by evidence, a seizure in pursuance of said act, or of other acts, if any, regulating seizures, and that ill the absence of such evidence, the onus probandi'cannot be thrown upon the claimant by proof of probable cause; proof of probable cause of such seizure being made by said, section a prerequisite which musí be complied with.'

      2. That upon the evidence offered by the United States in this cause, the onus probandi does not lie upon the plaintiff-under the provisions of the seventy-first section Of the act of 1799, because no'probablé cause has been shown to the Court for the prosecution in this case.
    ' 3. If the jury find from the evidence that the goods mentionéd in the third count of the information were entered in the office of the collector of the collection district of New York, in the southern district of New York, and were unladen • and delivered from the vessels in which they were imported, under permits granted by. said collector, who caused, the said goods, wares and merchandise to be examined, and -that after such examination, the duties on thé'same were ascertained and estimated by said-collector, and paid by the said claimant, ahd.the said goods were, by the-authority of the collector delivered to the said claimant; and if the júry further believe that the claimant caused the original packages in which..-Sajd goods were imported to be broken up, and- shipped said goods, forming a part of said packages, to his agents in Baltimore for sale, and that said goods Were seized after their actual arrival in Baltimore, and not before; that the United States are not entitled tó recover under the third count of the information.
    4. That fhe United States are not entitled to recover under the said third .count of the information, because the sixty-sixth section of the act of Congress, passed on the 2d of March, 1799, entitled An act to regulate the collection of duties.on imports and, tonnage,” was" riot in force when the goods mentioned in said third count were imported.

      5. That if the jury- believe, from the evidence, that the collector of the port of New York caused gt least one package out of every invoice, and one'package at least out of every twenty packages of each inyoice containing the goods mentioned in the sixth and: seventh counts of the information, .to beopened and examined; and that said packages ymrebefor&árich examination designated on the several invoices in which they werfrréspectively included; and that, said-collector did not deein it necessary that a greater number of package's than those so designated should be opened and examined. .And if. the jury further fin'd that upon such opening and exa:' urination, the goods Were, in the judgment Of the examining offi-' cer, found to correspond with said invoices, and not to be falsely eharge'd in said invoices; and that after the said examination, the duties on. said goods were ascertained, and estimated by Said collector, and..paid-by the claimant, and said,goods were delivered, to the claimant, who afterwards .sent them to his agents in Baltimore for sale; and that the seizure on which said information is founded, was made after said goods had arriyed in Baltimore ; that then the United ¿tates -áre not entitled to -recover under the said sixth count, so far as the same, charges the invoices to have been found to-be made up with inferit,. by á false’ valuation or extension, to evade or defraud the revenue-of the United States ; not. under the said-seventh count.
    6. That there is no evidence in the cause from which the jury, can .find that, the packages ,iri-which the goods mentioned in the sixth and .eighth counts of the information were imported into New York, were found upon .examination at the district‘of Maryland, to .be made rip'with intent to evade and defraud.the revenue, of the United States,jand that therefore* the -United States are not entitled to recover under said eighth count, nor under Sáid seventh count, so far as the samo charges the packages to be made up with such fraudulent intent.
    .7.' That the United States are not entitled to recover upon" either of the said'sixth,-seventh and eighth counts of said information, because the.tourth section of the act of Congress, passed on the 28th of May,/1830, entitled “An act for the more effectual coiléctlon of the import duties,” was not in force when the goods mentioned in said sixth,'seventh, and eighth counts were imported.
    8. That there is no evidence in the cause ■- from which the jury can find that the packages or either of them in which the. goods, mentioned in the' ninth count of the information were imported, were opened and examined at- the district of Maryland on the day mentioned in said count, or at any other time, and were found to be made up with intent to evade or defraud the-revenue; and that therefore the United States are not entitled to recover .upon said ninth count..
    But the Court refused to give the - instructions prayed for, both .by the United States and the claimant, and rejected the same, and each and every, of them; but gave the'following instructions and directions to. the jury.
    1. That the issues formed, arid which the jury are sworn to try, involve no question except upon the causes of forfeiture-alleged, in the information and traversed; and therefore no-question relating to the mere seizure of the goods is in issue or-mater rial under the pleadings in this.cause..

      2. If the jury shall find from the evidence' in the cause, that the invoices of the. goods in question were made-up with intent, by a false valuation, to evade: or defraud the revenue, the plaintiffs' are entitled to recover; although the jury should also find from the evidence, that the said goods have been passed through the custorii-house at New York, by the collector thereof,- and the duties calculated by hrm ori-said invoices, shall have heen paid or secured to-be paid, and the ¿aid goods delivered hy said collector to.the importer..
    ■ 3. That thére has been shown on the part óf the; United States, probable cause for the-present prosecution under, the third cotnil, and the sixth,'seventh, eighth, and'ninth counts in the information, and that the burden of proof lies, under the seventy-first section of .the act of the 2d of March, 1799, upon Thomas Wood, Jr., the claimant; and that it is incumbent upon him to prove to the jury -that the charges.in the said five counts,.are, untrue; that is, to prove that the goods in question were invoiced according to their actual cost at the port of exportation, and that the invoices and packages -were, not made up with intent to evade or defraud the revenue.
    4. That the burden of proof being upon the- said Thomas Wood, Jr., under the seventy-first section of the act of 1799, and the fifteenth section of the act of the 14th of July, 1832, it' is-incumbent upon him to prove to the jury the actual cost of the twerityhwo pieces of cloth in the invoices and entries stated to have been purchased by him; and that the value of the goods at the times or dates of the seizure, or of any other subsequent times are riot material, except so far as they may assist or tend to enable the. jury to ascertain the prices at the respective periods of purchase or shipment.
    . 5. That the burden of proof being upon the claimant to prove that the invoices were not made up with intent to defraud the revenue,, it is not sufficient for him to rely upon the invoices themselves merely as proving their own truth and fairness.
    The case was submitted to the Court by Mr. Meredith and Mr. Crittenden, for the plaintiff in error, and'Mr. Legaré, the attorney-general, and Mr. Cadwaladér, for the United States; the counsel for the parties furnished printed arguments to the Court.
    The counsel of the plaintiff in error contended upon - the-demurrers to the first three pleas:
    1. That there is ho right of'seizure after goods have been passed through the custom-hquSe, according to all the requisitions of'the revenue laws — they have been examined, inspected, and appraised — the duties ascertained and paid, and the goods themselves delivered to the owner qr importer, or his agent; and that they can never'afterwards be pursued as forfeited for any alleged, or pretended fraud or imposition upon the custom-house: that the right in such cases td claim and seize as a forfeiture, was limited to the transit,of the goods through the custom-house, and while-they were under the hands of-its officers,'for'their- inspecttion, examination, and appraisement,
    - To pujsu'e and seize' them afterwards,-when they have been introducéd into, the community and into the market, With all the authentic sanctions of the custom-house, is a very different thing. If Congress Had intended stich a course, it would have declared itself explicitly, and prescribed, if .'not some. restraint, ■ at' least some form, and mode for the exercise of a'power so tremendous and fearful. - And as there is no such legislation in any of the acts of Congress, it cannot be held that goods thus situated-are liable to seizure or forfeiture.
    2. That, everi if there be. a right of seizure under such-circumstances,'the seizure actually made must be a good subsisting seizure when’the information is filed.
    3. That the, Seizure made in this case was defective and irre-.. guiar.
    . Onthe.first exception, the-plaintiff in error contended that.the evidence offered by the United States of importations made' by ■the claimant, subsequent to the' importations charged by the information to have been fraudulent, was inadmissible.
    On the-second .exception the plaintiff in error contended :
    1. That,'assuming upon the evidence that the goods were entered: at the New York custom-house, and were unladen and delivered under permits' granted by the collector, who caused them to be examined, arid'upon such'examination ascertained and received the duties! and delivered the goods to the claimant, who afterwards broke up the " original packages, of which said goods formed a part, and shipped them- to Baltimore, for sale,, where they were'seized. The jiir'y ought to have been instructed, that if they believed such'evidenc'd,'to-find a verdict for .the claimant- on'the third count of.the information; and that the Court erred, in refusing to’ give such instruction.
    2. Thafthe third count .of the information cannotbe supported, because the sixty-sixth's,ecti’on of the dqty act Li March! 179.9, is-repealed, arid that the-Court ought so to have instructed the jury.
    3. That, assuming upon the evidence that the collector of New York caused at least .one package -out of every invoice, and one-package at least out of every twenty packages of each'invoice of goods mentioned in the sixth and- seventh counts of the infor- • nation to be opened and examined, and that said packages were,before such examination, designated '■ by the collector on. the several invoices.in which,they were ■ respectively, included; that, úpoh' such' opening and examination, the goods were found to correspond with the invoices, and not to be falsely, charged; that, .aftér said examination the duties were ascertained-and paid, and the goods delivered to the claimant; who sent them to his agents at Baltimore' for sale, where the seizure was made; that the jury ought to. have, been instructed, provided they believed said evidence, that the United States were not entitled to recover under the sixth count, so far as the same charges the invoices to have been found to be made up with intent,'by a false valuation or extension, to evade or defraud the revenue;’ nor under the seventh count;. and that the Court erred in refusing so to instruct the jury.
    4. That there was no evidence to support the/ eighth, count in the information, nor the sixth.count, s.o far as thé same charges the packages to have been made up with a fraudulent intent.

      5. That the' fourth section of the "act of Congress of the 28th-May, 1830, is repealed, and conseqUently/the sixth, seventh, and eighth-counts in the information cannot be. supported, añd that the Court ought to have so instructed, the jury..
    6. That there was no evidence in the cause to support the ninth count 'of .the information, and that the Court erred in not so instructing the jury.
    . For the United States, the-, attorney-general and" Mr. Cadwalader Contended, that the leading idea, of-all the arguments on the. other side, that the United States aré concluded by the .passing of the goods through -the custom-house, after an appraisement, and on payment of .duties according to that appraisement," in all cases whatsoever, and even of admitted fraud ; that the idea was that the United States had-adopted a sort of Spartan system of permitting fraud, so it be cleverly enough executed to escape detection at the custom-housé'; no matter how clearly it may be exposed' afterwards.
    But there was, happily, no plausibility in the argument, that because there are collectors, appraisers,' and inspectors, perpetually on the wé.tch to detect any violation - of the revenue-law, therefore-no ..other detection of it can be of any avail; that be- " cause so many statutes have been passed with a view, in the ordinary course of things, to insure the payment- of the public dues, therefore a fraud, which at. common law,,and in all law, taints and vitiates,and nullifies every civil proceeding, is permitted, because it has been perpetrated by some extraordinary contrivance, and in-spile of those statutes.
    As,to the information, it was argued that the five counts upon' Which the judgment of forfeiture was entered, were all good' apd sufficient. But, if this were otherwise, the- judgment would be affirmed, if any one. count of'the information Were.valid. The proceeding is, in- rem, for the enforcement of a forfeiture, and if one cause of .forfeiture is effectual, many cannot be more-effectual for the purpose. A condemnation upon one cause of forfeiture is an, adjudication that the-property is in the United States and is' the consummation and merger of the entire prosecution. Under cumulative-forfeitures, however numerous, more cannot be done than under a single-forfeiture*to ascertain that the claimant’s original property-is-divested arid is become the property of the United States. Iil Lócke v. ’The United States, ? Cranch,. 344, the eondemnátion was sustained upon one of many counts, without inquiry as to the sufficiency of the others, to, which objections had been made.
    The rest-of the argument on behalf of -the United’States, embraced the following heads:
    I. The'sixty-sixth section of -the act of 1799 is in force, and is the only act in* force under which individual pieces of goods, falsely invoiced,, are made liable to forfeiture, without reference to -the manner of making up the • entire invoice or package containing them ;• and is, also, the only act under which the United States can proceed in a personal action, to recover the value of the things, forfeited, or-such portion of them as cannot be' found and seized.
    II. The fourth section of the act of 1830 is. in force for two purposes, notwithstanding the repealing clause of the fourteenth section of the act of 1832.
    1. Where an invoice is made up with intent to defraud the revenue, not merely the pieces falsely invoiced, but the whole invoice is forfeited.
    2. Where a package, mentioned in .the invoice, is made up with an evasive or fraudulent intent, in respect to the invoice, the whole package is forfeited.
    III. Under these acts, thé' enforcement of the. forfeiture is not dependent upon the manner in which the goods may happen to have been seized, or the reasons for the seizure which may happen to have been known, or to have been assigned at ¿he. time, of making it. The filing of an information by the United States is an adoption by them of the seizure, and refers the prosecution not to the seizure, but to the antecedent causes of forfeiture alleged in the information. Matters that involve the regularity or. method of the seizure cannot be put in issue,' even under a plea in abate-" ment, which would be the only appropriate method of raising the questions'; much less can they be pleaded in bar, or togéther with plea's in bar.
    IY. The power of the'United States to. enforce a forfeiture incurred under .these acts, is not. dependent upon the acts or omissions of the appraisers and other, officers, of the customs, who are required to ascertain or. liquidate and-receive the pecuniary amount of duties for which the importer and goods are liable.
    ■ The two subjects of forfeiture and pecuniar liability for duties are, generally speaking, subjects of distinct independent statutory provisions; and different parts of the statutes are to be considered distributively, with reference to each respectively.
    When a forfeiture has been incurred by reason of a fraud, not even the Secretary of the Treasury and collector of the customs are authorized to remit or mitigate it, much less the appraisers and other subordinate officers of the collection of the revenue.
    V. The seventy-first section of the act of 1799 having enacted that, in informations where any seizure shall be made pursuant to that act, the burden of proof shall lie upon the claimant where probable cause'for the prosecution has been shown to the Court, the probable cause for the prosecution required to be shown, is referrable to evidence pertinent" to the issues upon causes of forfeiture set forth in the information, and not merely to the original grounds pf seizure by officers of the revenue before information filed, as contended for on behalf of-the plaintiff in error.

      VI. Probable cause for the prosecution was shown on- the part .of the. United States—
    1. By proof of the gross disproportion of the cost stated in the invoices and the actual market price of the period of the. pretended purchases.
    ,2'; By proof of 'the insertion as to b.oth cloths and cassimeres, of a pretended, discount or .allowance for measure, which, if not fictitious as to both cloths and cassimerés, .must have been so as to cassimeres.
    3. By the .evidence of which die admissibility is involved in the next point; and under the bill of exceptions to testimony.
    VII. As á part of the necessary circumstantial evidence admitted in all cases- of fraud, it was competent to prove that all the. importations of this claimant, including those before, as well as those since the importations in question were attended with the samé circumstances of a pretended discount or deduction for measure, .and that on,all of those which have been entered since the.commencement of the present proceedings, he has acquiesced without appeal or' objection in a liquidation of the duties on' the footing of disallowing this deduction, and of a still further addition, by the appraisements, to the cost of prices stated, in the invoices.
    This evidence-was-competent-for several reasons:
    1. A. comparison of the invoices with those in question, shows that the goods are all, or nearly all, from the same parties who made out the invoices of the goods in question, and the packages -are marked so as to indicate. that they are part of a connected series of importations.
    2. To prove the fictitious character of the series of importations of which these were á. part.
    . 3. - To disprove the possibility of their having been a.casual or fortuitous discount or allowance in the particular case iti question, and to indicate the intent of-the par-ties on both sides of the water, to make out the invoices fictitiously and evasively in respect to the revenue
    4. To prove a systematic combination for this purpose, between the foreign exporter or party making out the invoices, and the importer who-entered the goods upon them.

      5. To disprove the reality of. the discount by the acquiescence of the plaintiff in error in its rejection in subsequent cases.
   Mr. Justice Story

delivered the opinion of the Court.

. This is a writ of error from the judgment of the Circuit Court' of the district of Maryland, affirming, piro formé, a judgment of the District Court of the same district. •

The original suit was a.,libel of information, in rem, upon a seizure, upon land, in the said district, of twenty pieces of cloths imported into the United States, and alleged to be forfeited. 'The libel Contained a number of counts; but thát alone which is necessary to be here stated, is the count founded Upon the sixty-sixth section of the revenue collection act of 1799, chapter 128, which declares, “ That if any goods, wares, or merchandise, of which entry shall have been made in the office of a' collector; shall not be invoiced according to the actual cost thereof at the place of exportation, with design to- evade the duties thereupon, or any part, thereof, all such goods,wares, and merchandise, or the value thereof, to -be recovered of. the person making the entry, shall be forfeited.” The coUnt stated that thé goods in controversy were not invoiced according to the actual cost thereof at th'e place of exportation, with design ,to evade the duties. Various pleas were put in, to some of which there were demurrers, and upon others issue was joined, upon which a trial-was had by" a jury. The jury found a verdict for the United States.. The claimant (as well as the United States) prayed certain instructions to the jury which were-refused, and the Court gave' certain instructions to which the claimant excepted; and the cause came before the Circuit Court upon the bill of exceptions, filed, by the claimant, as well to the refusal-as to the instructions of the Court.. At the trial it appeared that the goods in. question had been originally’ imported into the port, of New York, and were there duly entered and landed, and the duties paid Upon, the invoices produced by the claimant at the custom-house. They were afterwards .transmitted to Baltimore, and there séized in the stores of. certain persons having the custody thereof for the claimant, under a search. warrant óf a magistrate, procured for that purpose. The validity of the original seizure is contested in some of the pleadings ; and this seems to have been insisted upon 'before- the jury as- one of the grounds of defence.

At the trial, -to" establish the fraud in the invoices, beside other evidence, the • counsel for the United States offered in evidence sundry -other invoices' of cloths' and cassimeres, twenty-pine in number: imported into the port of New York by the complainant, or consigned to him, for the purpose, of showing - the fraudulent intention of the claimant in those importations, as well as in the present. An objection was taken to the admissibility of this evidence, which was overruled by the Court; and the evidence was admitted: and this constitutes one of the exceptions, in the cauáe.

The District Jüdgs, after the -whole evidence was gone through, gave the following instructions to the jury, which involve the whole merits of the controversy:

1. - That the issues formed, and which the jury are sworn to try, involve no question except upon the causes of forfeiture Alleged in the information and traversed, and therefore no question relating to the mere 'seizure of the goods is in issue or material under the pleadings in this cause.

2. If the jury shall find from the evidence in the cause, that the invoices of the goods in question were made up with intent, by a false valuation to evade or defraud the revenue, the plaintiffs are entitled to recover, although the jury should' also find from the evidence that.the said'goods have been passed through the custom-house at New York, by the collector thereof, and the duties calculated by him on said invoices shall'have been paid or secured to be paid, and the said goods delivered by said collector ■ to the importer.

t ’3. That there has been shown on the part of the United States, probable cause for the present prosecution under the third count,- and the sixth, seventh, eighth, and ninth counts in the informa..tion, and that the burden of proof lies under the seventy-first section of the act of the 2d of March, 1799, upon Thomas Wopd, Jr., the claimant, and that it is incumbent upon him to prove to the jury that the charges in the said five counts are untrue; that is, to prove that the goods in question were invoiced according to their actual cost at the port of exportation, and that the invoices and packages were not made up with intent to evade or defraud the revenue.

4. 'That the burden of proof being upon the said Thomas Wood, Jr:, under the seventy-first section of the act of 1799, and the fifteenth section-of the act of the 14th of July, 1832, it is incumbent upon him to prove to the .jury the actual cost of the twenty-two .pieces of cloth in the invoices and entries stated to have been purchased, by him, and that the value of the goods at the times or dates of the seizure or of any other subsequent times are not material, except, so far as they may assist or tend to enable the jury to ascertain the prices at the respective periods of purchase or shipment.

5. That the burden of proof being upon the claimant to prove that the ■ invoices were not made up with intent to defraud the revenue, it is not sufficient for -him .to rely upon the invoices themselves, merely as proving their own truth and fairness.

In respect to the point made at the bar, as to the validity of the original seizure, or of the causes thereof, we are of opinion that thq first instruction of the District Judge" was entirely .correct. It is of no consequence, whatsoever, what -were the original grounds of the seizure, whether they were well foundéd or hot, if in point of fact the- goods are by law subjected to forfeiture; few the United States are not bound down by the acts of the seizors to the causes which influenced them in making the seizure, nor by ány irregularity on their part in conducting it", if in point of fact the seizure can now be maintained as founded' upon an actual forfeiture thereof at the time of. the seizure; and therefore it was rightly held by the judge, that no question arose upbn the issues which the jury were to try, except upon the causes of forfeiture alleged in the information.

The remarks just made constitute an answer to the argument upon the demurrers to the two first pleas of the claimant; for, as has been already suggested, if a seizure, has been actually made, and is a continuing seizure; it is no bar. -to proceedings 'thereon that the cause of forfeiture relied on' is not the same upon which the seizure was originally made. It is sufficient'- for the United States that it adopts the seizure and now proceeds for a good cause of forfeiture, although utterly unknown to the- original seizors.

Passing from this, the next point presented for consideration, is, whether there was an error in the admission of the evidence of •fraud: deducible from the other invoices offered in the case. We are of opinion that there was none. The question was one of fraudulent intent or not; and upon questions of that sort, where the intent of the party is matter in issue, it has always been. deemed' allowable, as well in criminal as in civil Cases, to introduce evidence of other acts and doing's of the party'of a kindred character, in order to illustrate or establish his intent, or motive in'the'particular act, directly in judgment. Indeed, in po other, way would it be practicable, in many cases, to establish such intent or motive, for the single act taken by itself may not be decisive, either way '; but when taken in connection with others of the like character and nature, the intent and motive may. be demonstrated almost with a conclusive certainty. The treatise on evidence by-Mr-. Phillipps and Mr. Starkie contain many illustrations to this effects See Starkie on Evidence, vol. 1, p. 64, vol. 2, p. 220, 221, second London edit., 1833; Phillipps on Evidence, by Cowen, vol. 1, ch. 7, s. 7, p. 179, 180, vol. 2. p. 452, note 333, p. 465, note 352, edit. 1839.

They constitute exceptions to the general rule, excluding -evidence not directly comprehended within the issue; or rather, perhaps,-it' may with more certainty be said, the exception is necessarily imbodied in the very substance of the rule: for whatever does legally conduce- to establish the points in issue is necessarily embraced in it, and therefore a proper subject of'proof; whether it be', direct, or only presumptive. This' doctrine was held in a most solemn' manner in the -case of the King v. Wylee, 4 Bos. and Pull. 92, where upon an indictment-for'disposing and putting aw,ay a forged bank note, knowing it to be forged, evidence was admitted of other forged notes having been uttered by the prisoner, in order to prove his knowledge of the forgery. The same doctrine has been held in cases of the uttering of bad money and spurious notes; and also in Cases of conspiracy. The same doctrine was affirmed and acted upon by this Court in the case of the United States v. Wood, 14 Peters’ Rep. 430, in the case of a prosecution for perjury.

Cases of fraud present a still more stringent necessity for the application of- the same .principle; for fraud being essentially a matter of motive and intention, is often deducible only from a great variety of circumstances, no one of which -is absolutely decisive; but all combined, together, may become almost irresistible as to the true nature and character, of the transaction in controversy. The cáse of Irving v. Motley, 7 Bing. Rep. 543, turned upon this very, point. There the (action was trover to recover bade goods which liad been purchased by an agent for his principal by means of a fraud... In order Uj establish the plaintiff’s case, it became necessary to show that other purchases had been made, by .the same agent for the same principal,' under circumstances strongly presumptive of á like-fraud; no doubt was entertained by the Court of the admissibility of the evidence; and the main point urged.at the' bar was that the agent should himself 'have -been called to establish-the purchases, but. this objection was'-overruled,-'and the jury, haying found a .verdict for the plaintiff, the Court gave judgment in his favour.

Indeed, it is admitted by. the counsel for- the plaintiff in error in the cáse before us, that it is a general principle of law that whenever a fraudulent intention is to ■ be established, collateral facts tending to show Such intention are admissible proof; but the objections taken' are,' first, that when the proof‘was ofiered no suitable foundation had been laid for .its .admission, and that-the cause was launched with this proof; and secondly, that the proof related to importations after, as well as before the'particular importation in question. We do not think either-of these objections maintainable. ' The fraud being to be madé out iuevidence, the order in which, the proof should be brought to establish it, was rather a matter in the discretion of the Court, than of strict right in the parties. Tt is impossible to lay- down any universal rule upon such a subject. Much must depend upon the posture and circumstances of the particular case; and at all events, if the '. proof be pertinent and competent, the admission of it cannot be matter of error. The other objection has as little foundation,: for fraud in ihe first importation may be as fairly deducible from other subsequent fraudulent importations by. the same party, as fraud would be in the last importation rom prior fraudulent- importations. In each case the quo animo.is in question, and'the presumption of fraudulent intention may equally'arise pud equally prevail.

The second instruction of the Court is, in effect, that if the invoices of the goods now in question were fraudulently made, by a. false valuation to evade or defraud the revende, the fact that they had been entered and the duties paid or secured at the custom-house at New York, upon those invoices, was no bar to the present information. This. instruction was certainly cdrrect, if the sixty-sixth section of the revenue collection act of 1799, ch. 128, now remains in full force and unrepealed: for it can never be permitted that a party who perpetrates a fraud upon the custom-house, and thereby enters ms goods upon false invoices and false valuations, and gets a regular delivery thereof upon the mere payment of such duties as such false invoices and false valuations require, can avail himself of that very fraud to defeat'the purposes of justice. It is but an aggravation’of his guilt that he has practised imposition upon the public officers, as well as perpetrated such a deliberate fraud. The language of the sixty-sixth section completely covers such a case. It supposes an entry at .the custom-house upon false invoices with intent to. evade the payment of the proper duties, and the forfeiture attaches immediately upon such an entry upon, such invoices with such intent. The success of the fraud in evading the vigilance of the public officers, so that it is not discovered until after the goods have passed from their custody, does not purge away the forfeiture; although it may render the detection of the offence more difficult and more uncertain. The whole argument turns upon this, that if the custom-house officers have not pursued the steps authorized by law to be pursued by them, by directing an appraisement of the goods in cases where they have a suspicion of illegality, or fraud, or no invoices are produced, but their suspicions are lulled to rest; the goods are untainted by the forfeiture the moment they pass from the custom-house. We cannot admit that such an interpretation of the objects or language of the sixty-sixth, section is either sound or satisfactory. The same reasoning governs the ruling of the Court, upon the demurrer to the third plea.

The question then arises whether the sixty-sixth section of the act of 1799, ch. 128, b?s been repealed, or whether it remains in full force, That it has not been expressly or by direct terms repealed is admitted; and the.question resolves itself into the more narrow inquiry, whether it has been repealed by necessary implication. We say by necessary implication, for it is not sufficient to establish that subsequent laws cover some or even all oí the cases provided for by it; for they may be merely affirmative, or' cumulative, or auxiliary. But there must be a positive repugnancy between the provisions of- the new laws, and those of the old; and even then the old law is repealed, by implication only pro tanto, to the extent of the repugnancy. And it may be added, that in the interpretation of- all laws for the collection of revenúe, whose provisions are often very complicated and numerous to guard against frauds by importers, it would be a strong ground to assert that the main provisions of any such laws sedulously. introduced to meet the case of a palpable fraud, should be deemed repealed, merely because, in subsequent laws other powers and authorities are given to the custom-house officers* and other modes of proceeding are allow ed to be! had by them before- the goods - have parsed from-their custody, in order to ascertain .whether there has been any fraud attempted upon the government. The more natural, if not'the necessary inference in all such cases is,/that the legislature intend the new laws to be auxiliary.to and in aid of the purposes of the old law, even when some of the cases provided for- may equally be within the reach of each. There certainly, under such circumstances, ought to be. a manifest and total repugnancy in the provisions to lead to the conclusion that the latter laws abrogated, and were designed to abrogate the former.

Down to the-act of the 28th of May, 1830, ch. 147, it does not appear to us that any act of Congress whatsoever has been cited at the argument which can, upon a reasonable construction,, be deemed to repeal the sixty-sixth section of the act of 1799. The act of 1830, in the fourth section, provides that tbé collectors of the customs shall cause at least one package out of every invoice, and one package at least out of every twenty packages of each invoice, and a greater number,.should he deem it-necessary, of goods imported, to be opened and examined; “and if the same be not found to correspond with the invoice, or to be falsely charged in such invoice, the collector shall order, forthwith, all 'the goods contained in the same entry to be inspected;. and if such .goods be subject to an ad valorem.duty, the same shall be appraised; and if any package shall be found to cóntain any article not described in the invoice, or if such package or invoice be made up with intent, by a false valuation or extension, or otherwise, to evade or defraud the revenue, the same shall be forfeited.” The section then proceeds to repeal the thirteenth section of the actof the 1st of March, 1823, ch. 149) without saying one word as to any repeal of any section of the act of 1799, ch. 128. Now, if here the rule' be properly applicable, that “Expressio unius est exclusio alterius,” the presumption of any repeal by implication of th.e sixty-sixth section of the act of 1799, would seem to be completely repelled.

' Besides, the fourth section of the act of 1830, is not pointed at the same .class of cases as the sixty-sixth section of the act of 1799. It obyiously and naturally, -in its whole provisions, applies solely to cases where the packages have been opened and examined by order of the collector, and upon such examination if any article is found not contained in the invoice, or the package or invoice is found to.be made up with an. intent by a false valuation, or extension, or otherwise, to evade or defraud the revenue, and then the same, are declared to be forfeited. It would be a strong doctrine to affirm that where no such examination or detection had taken place at the custom-house, but the same had passed from the public custody unopened, the forfeiture under this provision did apply, or was designed to apply. The fourteenth section of the act of the 14th of July, 1832, ch. 224,' has in some, measure qualified and mitigated the effect of the fourth section of the act of 1S30; by providing, that whenever upon opening and examination of any package or packages of imported goods, composed wholly or- in part of wool or eotton, (under which predicament the present goods fall) the goods shall be found not to correspond with the entry thereof at the custom-house, and if any package shall be found to contain any article not entered, such article shall be forfeited; or if. the packages shall be made up with intent to evade or defraud the revenue, the package shall be forfeited; and so much of the fourth section of. the act of 1830, as prescribes a forfeiture' of goods found not to correspond with the invoice thereof, is thereby expressly repealed.

In truth, however, there .is. not the slightest repugnancy between these sections of the act of 1830 and 1832, and the sixty-sixth section of the act of 1799. The former apply only to cases where there has been an opening and examination of the packages irhported, before they have passed from the custody of the' custom-house; and in the course of such examination, the fraud* ulent intent in the making up of the package or invoice has been detected; and,. thereupon, it declares the same to he forfeited. Now, tne sixty-sixth section of the act of 1799, may cover the same cases, but the forfeiture is the same; and, therefore, the provisions in such a case may well be deemed merely cumulative, and auxiliary to each other. But the sixty-sixth section is not confined to such cases; on the contrary, it covers all cases where the' goods have been entered, and have passed from the customhouse without any.examination or detection of the false invoice^: it' is, therefore, much more broad in its reach. To enforce a forfeiture under the sections of the acts of 1.830 and 1832, it would be necessary to allege,.in .the information or libel, all the special circumstances of the examination and detection-of the fraud, under the authority of the collector;-for they constitute a part of the res gestee, to which the' forfeiture is attached. But under the-sixty-sixth section no such allegations would be'necessary or proper, as the forfeiture immediately attaches tq every entry of goods falsely and fraudulently invoiced; without’ any reference, whatever to the mode, or the circumstances under, or by which, it is ascertained.

Besides, the sixty-sixth section not only provides for a forfeiture of the goods, but in the alternative, for a forfeiture of the value thereqf, to be recovered of the person making the false entry. • No such provision exists in the acts of 1830 or 1832. It is impossible, therefore, successfully to contend that the sixty-sixth section is repealed in toto, since ho subsequent act covers all the casqs provided fo£ by it. • It is, indeed, not a little singular-that the argument that it is repealed by implication must found ■•''self' upon the very ground that the present case is not covered by the other' acts. It must in effect assert, that the repeal, ought to be implied in all cases where-the goods have passed from the cústom-house without detection of the fraud, simply because if-, they had bpen examined, and the fraud detected there, they might, in thatcase, and in that case only, have been subjected to forfeiture, which would at most only establish á repeal pro tanto.- In our opinion, there is. no just foundation for the argument, Under any aspect.- ■ The provision in’ the' sixty-sixth section, is. intended -to suppress frauds upon the revenue. The other acts' are designed to. be au iiliary to the same important purpose — there is no repugancy. between the provisions; and to construe the latter as repealing the'former, would be to construe provisions’ to aid.in the detection of fraud, in such a manner as to promote fraud, by cutting down provisions of a far more general and important character, and essential to the security- of the revenue, ' It seems to us that no Court of justice is at liberty to adopt such a mode of interpretation of the revenue laws, unless driven -to it. by a stern .and irresistible'necessity.

" This reasoning might be expanded- by á more minute comparison of the Various acts of Congress with each other, and of the particular langüage used in each with reference to this subject. But, in our judgment, it is wholly unnecessary, because, after all, the whole-question must rest upon the broad grounds already stated. 'We think the second instruction given by the District Judges entirely correct.

The three remaining instructions turn upon the point whether, under the circumstances, th.e onus probandi as to the. facts stated in those instructions was upon- the claimant. Upon this we do not entertain the Slightest doubt. The seventy-first section of the act of 1799, .declares .that, “in actions, suits, or informations to be brought; .where any seizure shall be- ma4e pursuant to this act, if the property be’ claimed by any person, in every such case, the onus probandi shall lie upon such claimant;” and it is afterwards added, “but the onus probandi shall lie on the claimant only where probable cause is shown for the prosecution, to be judged of by the-Court before whom the prosecution is had,”

Probable cause must, in (this connection, mean reasonable ground of presumption that the charge is,, or ’may be, well founded; and we think, in this case, that there was abundance of proof not only to justify such a reasonable presumption, but to ■ give it solid weight; and, in the absence of all countervailing evidence., which was completely within the. reach of the claimant if the invoices were bona fide, to give it a force difficult to be resisted. Upon the whole, our opinion is, that there is no error in the judgment of the Circuit Court, affirming the judgment of the District Court, and therefore it will be affirmed by this Court.