author: Washington, Justice.

text:
    *APRIL TERM, 1803.
    Present — Washington, Justice, and Peters, District Judge.
    Balfour’s Lessee v. Meade.

      Settlement.

    To constitute a settlement, under the act of April 3d 1792, so as to vest in any one an inceptive title to the lands lying north and west of the Ohio, &c., there must have been an occupancy by him, accompanied by a bond fide intention to reside upon the land, either in person, or by a tenant: the malting of improvements merely, is not such a settlement.
    The proviso of the 9th section of that act applies solely to those who had incipient titles, which could only have been created by such occupancy or by warrant: a warrant of acceptance for these lands, not founded on such settlement, though containing a false recital of it, gives no title.
    This was an ejectment for four tracts of land, lying north and west of the Ohio and Allegheny rivers and Conewango creek, in Pennsylvania. The plaintiff’s title rested upon settlement rights, surveys and warrants.
    In 1793, the plaintiff was a surgeon in the army, in garrison at Fort Franklin. He took some of the soldiers, went out, cut down a few trees, and built up five pens or cabins, about ten feet square, and without putting covers on them, returned back to the fort, in six or seven days. In April 1795, he had these five tracts surveyed in the name of himself, Elizabeth Balfour, and three others, each, four hundred acres. The deputy-surveyor had, upon application of the plaintiff, directed one Wilson to make the surveys, but something preventing him from doing it, the plaintiff employed one Steel to do it; and upon returning the surveys to Stokely, the deputy-surveyor, he prevailed upon him to write an authority to Steel to make the surveys, which Stokely says, he did: and ante-dated it, in order to make it appear to precede the surveys. In May 1795, he obtained warrants of acceptance for two of the surveys of two of the tracts, having paid the consideration-money for all.
    In the autumn of 1794, Meade, the defendant, finding no person settled upon these tracts, built cabins upon the four tracts in controversy, covered them, or some of them, and then went off, not returning again, until November 1795, when he came, with his family, to reside in one of the cabins, and fixed settlers upon the other tracts. In July 1795, the plaintiff gave notice to the defendant, *that he claimed the tracts in question, that he intended to settle them, and forewarned him to proceed no further *- with his improvements thereon. In January 1796, the defendant caveated the plaintiff in form, and the same being tried before the board of property, in March 1800, the caveats were dismissed, and warrants were ordered to issue; but they never did issue, in consequence of doubts afterwards existing respecting the plaintiff’s title.
    In April 1796., the plaintiff made engagements with some persons to settle these lands for him; but after they had seen and approved the lands; they declined going on them, on hearing of the defendant’s claim.
    It was in proof, by many witnesses, that the war with the Indians rendered it dangerous to settle that country, during the year 1798, 1794 and 1795, and that but few attempted, before the'spring or autumn of 1796.

      E. Tilghman and Dallas contended,
    that the plaintiff had acquired a good right by settlement, survey and warrant, to the lands in question, under the laws of Pennsylvania, and particularly the act of the 3d of April 1792 (3 Dali. Laws, 209) ; that the settlement of Meade, in 1795, was in violation of the plaintiff’s prior right, and, of course, void ; that the plaintiff had been prevented by the Indian hostilities, from settling or fixing settlers, until the treaty of Fort Grenville, made in August 1795, and ratified in December 1795, and that he had attempted to settle it in a reasonable time after that event. 1 Dall. 6; 2 Ibid. 98; 3 Ibid. 457; Addison 216, 354, 218.

      Ingersoll and McKean contended,
    that the plaintiff never had made a settlement, within the meaning of the law, not having accompanied it with actual residence, or an intention to reside; that, of course, he never had an inceptive title, to be protected by the proviso in the 9th section of the act of the 3d of April 1792. They cited Addison, 248, 335 ; the case of the Holland Company v. Coxe, m the supreme court of this state (ante, p. 170), and the decisions of the judges of that court, in a feigned issue, tried at Sunbury (ante, p. 237).

       s. c. 1 W. C. C. 18.

   Washington, Justice.

— The importance of this cause led the court to wink at some irregularities in the argument at the bar, which have tended to protract it to an unreasonable length. Depending on the construction of laws of the state, and particularly on that of the 3d of April 1792, it-had, at first, the appearance of a difficult and very complicated case. It is not easy, at the first reading of a long statute, to discover the bearings of one section upon another, so as to obtain a distinct view of the meaning and intention of the legislature. But the opinion I now entertain was *365] formed on Saturday, before we parted; open, however, *as it always is, to such alterations as ulterior reason and argument may produce.

The better to explain, and to understand, the subject, it will be necessary to take a general view of the different sections of the act of the 3d of April 1792, upon which this cause must turn. The 1st section reduces the price of all vacant land, not previously settled or improved, within the limits of the Indian purchase, made in 1768, and all precedent purchases, to 50s. for every 100 acres; that of the vacant lands within the Indian purchase made in 1784, lying east of Allegheny river and Conewango creek, to 5i., to be granted to purchasers in the manner authorized by former laws. The 2d section offers for sale all the other lands of the state, lying north and west of the Ohio, Allegheny and Conewango, to persons who will cultivate, improve and settle the same, or cause it to be done, at the price Oj! 71. 10s. per hundred acres, to be located, surveyed and secured as directed by this law. It is to be remarked, that all the above lands lie in different districts, and are offered at different prices. Title to any of them may be acquired by settlement, and to all, except those lying north and Avest of the Ohio, Allegheny and Conewango, by warrant, without settlement.

The 3d section, referring to all the above lands, authorizes applications to the secretary of the land-office, by any person having settled and improved, or AAdio was desirous to settle and improve, a plantation, to be particula?-ly described ; for a Avarrant for any quantity of land, not exceeding 400 acres, AAfhich Avarrant is to authorize and require the surveyor-general to cause the same to be surveyed, and to make return of it, the grantee paying the purchase-money and fees of office. The 8th section, which I notice in this place, because intimately connected with the third section, directs the deputy-surveyor to survey and mark the lines of the tract, upon the application of the settler. This survey, I conceive, has no other validity than to furnish the particular description, which must accompany the application at the land-office for a Avarrant. The 4th section, amongst other regulations, protects the title of an actual settler, against a warrant entered with the deputy-surveyor, posterior to such actual settlement.

The 9th section, referring exclusively to the lands north and west of the Ohio, Allegheny and Conewango, declares, “ that no warrant or survey of lands within that district, shall give a title, unless the grantee has, prior to the date of the warrant, made, or caused to be made, or shall, within two years after the date of it, make or cause to be made, an actual settlement, by clearing, fencing and cultivating tAvo acres, at least, in each hundred acres, erecting thereon a house for the habitation of man, and residing, or * 1 causing a family to reside, thereon, for five years next following his -* first settling the same, if he shall *so long live; and in default of such actual settlement and residence, other actual settlers may acquire title thereto.”

Let us now consider this case, as if the law had stopped here. A title to the land in controversy, lying north and west of the Ohio, Allegheny and Conewango, coaid be acquired in no other manner than by actual settlement ; no sum of money could entitle a person to a warrant, unless the application was preceded by actual settlement on the land, or, if not so preceded by actual settlement, the warrant would give no title;, unless it were followed by such settlement, within two years thereafter.

The question then is, what constitutes such an actual settler, within the meaning and intention of this law, as will vest in him an inceptive title, so as to authorize the granting to him a warrant.; not a pedis possessio / not the erection of a cabin, the clearing, or even the cultivation, of a field: these acts may deserve the name of improvements, but not settlements. There must be an occupancy, accompanied with a bond fide intention to reside and live upon the land, either in person, or by that of his tenant, to make it the place of his habitation, not at some distant day, but at the. time he is improving : for if this intention be only future, either as to his own personal residence, or that of a tenant, then the execution of that intention, by such actual residence, fixes the date; the commencement of the settlement, and the previous improvements, will stand for nothing in the calculation.

The erection of a house, and the clearing and cultivating the ground, all or either of them, may afford evidence of the quo animo with which it was done ; of the intention to settle; but neither, nor all, will constitute a settlement, if unaccompanied by residence. Suppose, then, improvements made, the person making them, declaring at the time, that they were intended for temporary purposes of convenience, and not with a view to settle and reside : could this be called an actual settlement, within the meaning and intention of the legislature ? Surely, no: but though such acts, against express declarations of the quo animo, will not make a settlement, it does not follow, that the converse of the proposition will; for a declaration of an intention to settle, without actually carrying that intention into execution, will not constitute an actual settlement.

How do these principles apply to the case of the plaintiff? In 1793, he leaves the fort at which he was stationed, and in which he was an officer, with a few soldiers; cuts down some trees, erects four or five pens (for, not being covered, they do not deserve the name of cabins), and in five, six or seven days, having accomplished this work, he returns into the fort, to his former place of residence. Why did he retreat so precipitately ? We hear of no danger existing, at the time of completing these labors, which did not exist during the time he was engaged in them. What prevented him from proceeding to cover the cabins *and from inhabiting them? Except the state of general hostility, which existed in that part of the coun- L try, there is no evidence of a particular necessity for flight, in the instance of this plaintiff. It is most obvious, that the object of his visit to this wilderness was, to erect what he considered to be improvements; but the-1'were, in fact, uninhabitable by a human being, and consequently, could not have been intended for a present settlement. He was, besides, an officer in the army, and whilst in that service, he could not settle and reside at his cabin, although the country had been in a state of perfect tranquillity. In short, his whole conduct, both at that time and afterwards ; his own statements, when asserting a title to the lands, the recitals in his warrants of acceptance, and certificates of survey, all afford proof which is irresistible, that he did not mean, in 1793, to settle. Mistaking the law, as it seems many others have done in this respect, he supposed that an improvement was equivalent to a settlement, for vesting a right in those lands. It is not pretended, even now, nor is it proved by a single witness, not even by Crouse, who assisted in making the improvements, that he contemplated a settlement. It has been asked, could the legislature have meant to require persons to sit down, for a moment, on land encompassed by dangers from a savage enemy ? I answer, no : at such a time, it was very improbable, that men would be found rash enough to make settlements. But yet no title could be acquired, without such a settlement, and if men were found hardy enough to brave the dangers of a savage wilderness, they might be called imprudent men, but they would also deserve the promised reward, not for their boldness, but for their settlement.

The first evidence we have of an intention in the plaintiff to make aD actual settlement, was in the spring of 1796, Iqng after the actual bond fide settlement of the defendant with his family; for I give no credit to the notice from the plaintiff to the defendant, in July 1795, since, so far from accompanying it with actual settlement, he speaks of a future settlement, which, however, was never carried into execution. Everything which I have said with respect to the 400 acres surveyed in the name of George Balfour, will apply, á fortiori, against the three other surveys in the name of Elizabeth Balfour, &c., who it is not pretended were ever privy even to the making of the cabins, or ever contemplated a settlement upon those lands.

If the law, then, had stopped at the proviso, it is clear, that the plaintiff never made such a settlement as would entitle him to a warrant. But die excuses himself from having made such a settlement, as the law required, by urging the danger to which any person, attempting a residence in that country, would have been exposed. He relies on the proviso to the 9th section of the law, which declares, u that if any such actual settler, or any grantee *3681 ™ any su°k original or succeeding warrant, shall, by force of *arms of the enemies of the United States, be prevented from making such actual settlement, or be driven therefrom, and shall persist in his endeavors to make such actual settlement as aforesaid, then, in either case, he and his heirs shall be entitled to have and to hold the said lands, in the same manner as if each actual settlement had been made and continued.” Evidence has been given of the hostile state of that country, during the years 1793, 1794, 1795, and the danger to which settlers would have been exposed, We know, that the treaty at Fort Grenville was signed on the 3d of August 1795, and ratified the 22d of December, in the same year. Although Meade settled, with his family, in November 1795, it is not conclusive proof that there was no danger, even then; and, at any rate, it would require some little time and preparation, for those who had been driven off, to return to their settlements; and if the cause turned upon the question, whether the plaintiff had persevered in his exertions to return and make such settlements, as the law requires, I should leave that question to the jury, upon the evidence they have heard. But the plaintiff, to entitle himself to the benefit of the proviso, should have had an incipient title, at some time or other, and this could only have been created, by actual settlement, preceding the necessity which obliges him to seek the benefit of the proviso, or by warrant.

I do not mean to say, that he must haw had such an actual settlement, as this section requires to give a perfect title; for if lie had built a cabin, and commenced his improvement, in such manner, as to afford evidence of a bond fide intention to reside, and had been forced off by the enemy, at any stage of bis labors, persevering, at all proper times afterwards, in endeavors to return, when he might safely do so, he would have been saved by the proviso. But it is incumbent on the plaintiff, if he would excuse himself from the performance of what has been correctly called a condition precedent, to bring himself fully and fairly within the proviso, which was made for his benefit: this he has not done.

Decisions in the supreme court, and in the common pleas of this state, have been cited at the bar, two of which I shall notice, for the purpose of pointing out the peculiar mark which distinguishes them from the present, and to prevent any conclusions from being drawn from what has been said, either to countenance or impeach those decisions. The cases I allude to are, the Holland Company v. Coxe, and the feigned issue tried at Sunbury.

The incipient title, under which the plaintiffs claimed in those causes, were warrants, authorized by the 3d section of the law ; the incipient title in the present case, is settlement. The former was to be completed by settlement, survey and patent; this was to precede the warrant; and for the more distinct explanation of this ^distinction, it will be important to ascertain what acts will constitute an actual settler, to whom a warrant may issue, and what constitute an actual settlement as the foundation of a title. I have before explained, who may be an actual settler, to demand a warrant, namely, one who has gone upon and occupied land, with a bond fide intention of an actual present residence, although he should have been compelled to abandon his settlement, by the public enemies, in the first stages of his settlement: but actual settlement, intended by the 9th section, consists in clearing, fencing and cultivating, two acres of ground, at least, on each hundred acres, erecting a house thereon, fit for the habitation of man, and a residence continued for five years next following his first settling, if he shall so long live. This kind of settlement more properly deserves the name of improvements, as the different acts to be performed clearly import. This will satisfactorily explain what, at first, appeared to be an absurdity in that part of the proviso, which declares, that if such actual settler shall be prevented from making such actual settlement, &c.” The plain meaning is, that if a person has once occupied land, with an intention of residing, although he has neither cleared or fenced any land, and is forced off by the enemies of the United States, before he could make the improvements, and continue thereon for five years; having once had an incipient title, he shall be excused by the necessity, which prevented his doing what the law required, and in the manner required; or if the warrant-holder, who, likewise, has an incipient title, although he never put his foot upon the land, shall be prevented by the same cause, from making these improvements, &c., he, too «hall be excused if, as is required also of the settler, he has persevered in his endeavors to make those improvements; <fce. But what it becomes such a grantee to do, before he can claim a patent, or even a good title, is quite another question, upon which I give no opinion.

As to the plaintiff’s surveys and warrants, they cannot give him a title. Not the surveys. 1st. Because they are a mere description of the land, which the surveyor is authorized by the 8th section to make, and the app'n* cant for the warrant is directed, by the 3d section, to lodge in the land-office at the time he applies for the warrant. It is merely a demarcation, a special location of the land intended to be appropriated, and gives notice of the bounds thereof, that others may be able to make adjoining locations, without danger of interference : that is not such a survey as is returnable,'so as to lay the foundation of a patent. 2d. It is not authorized by a warrant. 3d. It was not for an actual settler. 4th. It was not made by an authorized surveyor, if you believe, upon the evidence, that the authority to Steel was ante-dated, and given after the survey was returned. Not the warrants. 1st. Because it was not a warrant of title, but of acceptanse. *2d. -* It is not founded on settlement, but improvement, and if it had recited the consideration to be actual settlement, the recital would have been false in fact, and could have produced no legal valid consequence.

As to the caveat; the effect of it was to close the doors of the land-office against the further progress of the plaintiff in perfecting his title. The dismissal of it, again opened the door, but still, the question as to title is open for examination in ejectment, if brought within six months, and the patent will issue to the successful party.

The plaintiff, therefore, having failed to show a title sufficient to enable him to recover in this action, it is unnecessary to say anything about the defendant’s title ; and your verdict ought to be for the defendant.

The jury found for the defendant.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Humphries v. Blight’s assignees.

      Bankruptcy. — Set-off.
    Where the holder of a negotiable note indorses it to a third person, after a commission of bankruptcy has issued against the payee, the indorsee may prove under the commission, but subject to all just off-sets, existing at the time of the bankruptcy.
    This was an amicable action, to obtain a decision upon these general facts : Murgatroyd, being possessed of two notes, made by Peter Blight, payable without defalcation, and being indebted to Humphries, offered to give the notes in part payment, and cash for the rest of the debt. The notes had been due for some time ; and a commission of banknqptcy had previously issued against Blight; but Blight, upon an application from Humphries, advised him to accept the proposition, without any intimation of a defence or set-off. The notes were, accordingly, indorsed by Murgatroyd to Humphries ; but when presented by the indorsee, to be proved under the commission, the assignees of Blight claimed a right to set off a debt due from Murgatroyd to Blight; and for the trial of this claim the present action was instituted. Two questions, however, were discussed on the trial: 1st. Whether the holder of a promissory note, purchased after a commission of bankruptcy had issued against the maker, could prove the debt, under the commission ? 2d. Whether the note, being purchased after it was due, had not lost its general negotiable character ; and consequently, remained subject to any set-off, that would apply between the drawer and payee ?

      Hare and Dallas argued for the plaintiff,
    and cited 5 vol. Acts Cong. p. 68, § 34; 5 Geo. II, c. 30, § 7, § 28; 5 vol. Acts Cong. p. 16, 74, § 1, § 42; 1 Atk. 73; 2 Wils. 135; Cull. 99; Evans 220; Co. B. L. 19; 1 Atk. 119; 4 Dall. Laws, 102-3; 3 T. R. 80, 7 Ibid. 429; 2 Dall. 396; 2 Fonbl. 150; Anstr 427.

      Rawle argued for the defendants,
    and cited 4 T. R. 714; 6 Ibid, 57; 2 Str. 1234; 3 T. R. 80 , Co. 96 ; 5 vol. Acts Cong. p. 74, § 42. *[371

         s. c. 1 W. C. C. 44.

   By the Court.

— 1st. We have no doubt upon the right of the assignee of the note, in this case, to prove the debt under the commission, and to receive a dividend. The certificate of the bankrupt would be a bar to a recovery, in an action by the present holder of the note against him; and wherever a certificate will be a bar, the right to prove the debt, under the commission, must be unquestionable.

2d. In the case of negotiable paper, or in the ease of an assignable bond, we have always thought, that the assignee takes it discharged of all the equity (as between the original parties) of which he had no notice. But whenever the assignee has notice of such equity, either positively or constructively, he takes the assignment at his peril. The assignment, in this case, was taken after the commission of bankruptcy had issued; and the commission was legal notice, that wherever mutual debts subsisted between the bankrupt and his creditors, the right .of set-off attached. The set-off claimed by the assignees must, therefore, be allowed : and this opinion is given, without admitting any distinction, whether the notes were due or not, before the assignment; but merely upon the ground that the assignment was subsequent to the commission.


author: Washington, Justice,

text:
    *APRIL TERM, 1804.
    Present — Washington, Justice, and Peters, District Judge.
    United States v. Thomas Passmore.

      Rerjwry. — Repeal of statute.

    Perjury, under the bankrupt law of 1800, was not indictable, under the act of 80th April 1790, § 18; that section only applies to perjuries committed in judicial proceedings.
    An indictment cannot be sustained, under a statute which has been repealed, without any saving clause.

    The defendant, who had become bankrupt, was prosecuted by indictment, containing two counts, for perjury, in swearing before the commissioners, on the 20th day of September 1803, that he “ could not tell exactly the time, but believed it was the latter (end) of 1799, that he first owned the brig Abigail. He ceased to own her, he rather thought, in the year 1800,” when, in truth and in fact, he never did own her, but had covered the property for an alien under Ms name. He had before sworn at the customhouse (on the 31st of July 1799), that he “was the true and only owner of the brig Abigail; that there was no subject nor citizen of any foreign prince or state, directly or indirectly, by way of trust, confidence or otherwise, interested therein, or in the profits or issues thereof but no information, tending to falsify this oath, was received, until a prosecution was barred by the act of limitation. 1 U. S. Stat. 119, § 32. On the 19th of December 1803 (2 Ibid. 248), an act of congress was passed, enacting, “ that the act of congress, passed on the 4th day of April 1800, entitled c an act to establish an uniform system of bankruptcy, throughout the United States,’ shall be and the same is hereby repealed : provided, nevertheless, that the *„*o-i repeal of the said act shall in nowise affect the *execution of any ^ commission of bankruptcy, which may have been issued prior to the passing of this act, but every such commission shall be proceeded on and fully executed, as though this act had not passed.”
    The facts being laid before the jury, Rawle and Dickerson,

    made a defence, principally, upon two grounds : 1st. That the defendant was not guilty upon the merits. 2d. That the oath, charged to be false, was taken before the repeal of the bankrupt law; and in consequence of the repeal, could not be the subject of a prosecution, either under the bankrupt law, under the general penal law, or at common law.  On the first ground, they cited 4 Bl. Com. 136; 1 Ibid. 60; 1 Hawk. 331; 2 Ibid. 84; Cro. Car. 852; Cro. Eliz. 148; 1 Salk. 374; Bank. Law, § 18; 2 Esp. 281; 1 McNall. L. of Ev. 3; 1 Ld. Raym. 396; 1 Hale 706; 2 Salk. 513; 10 Mod. 335; Cro. Jac. 644; 3 Mod. 78; 2 Ld. Raym. 991; 1 Burr. 543; 4 Ibid. 2026; Cowp. 297; Leach C. L. 252, 268; Bank. Law, § 15, 21, 51; 4 vol. Acts Cong. 427, § 88; 3 vol. 337; 2 vol. 30; 2 vol. 21; 4 vol. 102, § 2; 2 vol. 157, 193. And on the second ground, they cited 1 W. Black. 451; 1 Hale 291, 525; 1 Hawk. 306; 4 vol. Acts Cong. 523, 202.

      Dallas (the district-attorney) submitted to the court three propositions :
    1st. That, notwithstanding the repealing act, the perjury charged was indictable, according to the first count of the indictment, under the bankrupt law, as an incident to the execution of the commission. 5 vol. 61, § 21; 6 Bac. Abr. 384, 390; 2 Leach 810; Co. B. L. 7; 5 Geo. II., c. 30, § 44; 6 vol. 95, § 14; 5 vol. 238; 6 vol. 93; 1 vol. 113, § 32; 2 Hawk. 87, c. 69, § 4; 6 vol. 80, § 5; 3 vol. 163; 6 vol. 58, § 1; 1 vol. 337, § 46; 3 vol. 97; 3 vol. 334; 5 vol. 126; 4 vol. 456; 3 vol. 88; 1 vol. 236; 4 vol. 446, § 112; Ibid. 427; 1 Hawk. 306; Bro. Abr. 203; 1 Hale 291, 525; 2 Ibid. 190. 2d. That the per j ury charged was indictable, according to the second count of the indictment, independent of the bankrupt law, upon the general penal act (1 vol. 108), inasmuch as the provisions of the bankrupt law, do not create the offence; are affirmative and not repugnant: and, with respect to the punishment, are cumulative. Cowp. 297; 2 Hale 705; 4 Burr. 2026; 23 Geo. II., c. 13; *Leach 253; 1 Hawk. 306, B. 1, c. 40, § 5; Leach, 715; 2 Hale 191-2. And 3d. That according to the opinions of some of the judges L of the supreme court,  the perjury charged, was indictable at common law ; and in that case, the conclusion of the indictment, “ against the form of the statute,” was to be regarded as surplusage. 2 Hawk. 83; United States v. Ravara, 2 Dall. 297; Williams' case, 2 Cranch 82, in note; United States v. Worrell, 2 Dall. 384.

       s. c. 1 W. C. C. 84.

       United States n. Finlay, 1 Abb. U. S. 364; s. c. 3 Pitts. 126; Esparte Landsberg, 11 Int. R. Rec. 150; United States v. Bennett, 12 Bl. C. C. 345. And the repeal of a penal statute puts an end to a pending indictment under it; United States v. Tynen, 11 Wall. 88; Commonwealth v. Duane, 1 Binn. 601; Genkinger v. Commonwealth, 32 Penn. St. 99; Hartung v. People, 22 N. Y. 95.

         In consequence of this, and other similar cases, occurring at the custom-house, the time allowed for prosecuting offences under the revenue laws, was enlarged. (1 U. S. Stat. 290.)

       Before the jury was sworn, Ramie said, that although he did not mean to move to quash the indictment, he should propose, under the sanction of the court, that the question of law arising upon the repealing act, should be discussed, as scon as the jury were sworn, and before any evidence was produced. The attorney of the district objected to the novelty of such a proceeding. And by The Cotjut. — The trial must proceed, in the usual course: the evidence and law must both be laid before the jury, whe will then give a verdict, under the charge of the court. If the verdict should be agains* the defendant, his counsel may move the point of law, in arrest of judgment.

       The attorney of the district stated that the last point was made, in deference to the opinion of the court, on the question of a common-law federal jurisdiction, in criminal eases; and not as expressive of his own sentiments upon the subject.

   Washington, Justice,

delivered the charge of the court at large, upon the points of law; but cautiously abstained from giving any opinion upon the facts. He considered the repealing act as an absolute bar to the prosecution; and told the jury, expressly, that the defendant was, on that ground alone, independent of any question upon the merits, entitled to an acquittal.

On this charge, the jury immediately found a verdict of not guilty.


text:
    Willing et al., Plaintiffs in error, v. United States.

      Shipping. — Registry.—American character.

    The sate of part of a vessel, by parol, whilst at sea, to an .American citizen, and a resale to the vendor, on her arrival in port, and before entry, does not forfeit her American character, nor render her subject to foreign duties; a new register is not necessary.
    Error from the District Court of Pennsylvania. Upon the record, it appeared, that this was an action upon a bond, dated the 16th of November 1802, given by Willings & Francis and J. Miller, in the penal sum of $15,442, to secure the payment of $7720.41, being the amount of one-half of the duties payable on the cargo of the ship Missouri, on the 16th of May 1803. The defendants pleaded, 1st. That the duties on the goods in question amounted only to $14,036.73, on account of one-half of which ($7018.36) the bond was given. And 2d. Payment.
    The plaintiff replied, 1st. That the ship was an American registered vessel, owned by the defendants, when she sailed from Philadelphia for Canton, on the 1st of December 1800 ; that after her departure, she was in part sold to Jacob G. Koch and others, on the 12th of February 1801 ; that on making the sale, the ship was not registered anew, nor was there any bill of sale executed, reciting her register; that the goods were imported into the port of Philadelphia, subsequent to the sale, on the 16th of November 1802 ; that the amount of the duties was $15,440.82, for one-half of which, payable in six months, the bond was given. 2d, Non solverunt.

    The defendants rejoined, that they admit the sale to Koch and others, *g/T5 -j and the importation of the goods after such sale ; but they *aver that J the ship was at sea, at the time of the sale, having her register on board, and that it was not, therefore, in the power of the defendants to deliver it up, at the time of the sale ; that on her arrival, the 15th of November, the defendants did execute a bill of sale to Koch and others, reciting the register, and the master delivered up the register to the collector, whereupon, the ship was registered anew, as the joint property of the defendant and Koch and others ; that on the 7th of January 1803, Koch and others resold to the defendants, and executed a bill of sale reciting the register last mentioned ; and that, thereupon, the ship was registered anew as the property of the defendants, whereby she continued an American registered vessel, not liable to foreign duties, and that the domestic duties only amounted to $14,036.73, &a.

    The plaintiffs sur-rojoined, that they admit, the ship was at sea, when she was in part sold to Koch and others; but aver, that she was not registered anew, nor was there a bill of sale, reciting the register, at the time of the sale, nor at the time of her arrival. ■ That they also admit that the master delivered to the collector the register of the ship, at the time of his arrival; but they insist that it was long after she had been in part sold, without being registered anew, &c.; that the registry of the ship, on the 22d of December 1802, in the name of Koch and others and the defendants, was made after the resale by Koch and others to the defendants, when Koch and others had ceased to own any part; and that they admit, that Koch and others, having previously resold, did, on the 24th of January 1803, deliver up the register in their names, and the ship was then registered anew, as the exclusive property of the defendants. But they insist, that at the time of the actual resale by Koch and others (15th November 1801), she was not registered anew, nor did they then execute a bill of sale, reciting the register; that the registry of the 24th of January 1803, was made under color of a bill of sale executed by Koch and others to the defendants, long after the resale, and they had ceased to have any interest in the ship ; and that at the time of the sale in part to Koch and others, of the resale by them to the defendants, of the arrival of the ship in the port of Philadelphia, and of her entry, she had ceased to be deemed a ship of the United States. The defendants demurred, generally, to the sur-rejoinder ; and the plaintiffs joined in demurrer.
    The general question, upon the demurrer, was, whether a registered vessel of the United States, being sold in part, to resident citizens of the United States, while she was at sea, without a bill of sale, reciting the register, and without being then registered anew, was liable, with her cargo, to the payment of foreign, or only to the payment of domestic, tonnage and duties, on her return to a port of the United States ? And the argument *3761 res^e<^ °biefly upon the terms and meaning of *the 14th section of J the registering act, which is in these words :
    “And be it further enacted, that when any ship or vessel, which shall have been registered pursuant to this act, or the act hereby in part repealed, shall, in whole, or in part, be sold or transferred to a citizen or citizens of the United States , or shall be altered in form or burden by being lengthened or built upon, or from one denomination to another, by the mode or method of rigging or fitting, in every such case, the said ship or vessel shall be registered anew, by her former name, according to the directions herein-before contained (otherwise she shall cease to be deemed a ship or vessel of the United States), and her former certificate of registry shall be delivered up to the collector to whom application for such new registry shall .be made, at the time that the same shall be made, to be by him transmitted to the register of the treasury, who shall cause the same to be cancelled. And in every such case of sale or transfer, there shall be some instrument of writing, in the nature of a bill of sale, which shall recite at length the said certificate, otherwise the said ship or vessel shall be incapable of being so registered anew ; and in every case in which a ship or vessel is hereby required to be registered anew, if she shall not be so registered anew, she shall not be entitled to any of the privileges or benefits of a ship or vessel of the United States. And further, if her said former certificate of registry shall not be delivered up, as aforesaid, except where the same may have been destroyed, lost, or unintentionally mislaid, and an oath or affirmation thereof shall have been made as aforesaid, the owner or owners of such ship or vessel shall forfeit and pay the sum of five hundred dollars, to be recovered with costs of suit.” In the district court, judgment was rendered for the United States.

      *The cause was again argued in the circuit court, on the 6th and 7th of May 1804, by Dallas (district-attorney), for the United States, and by Rawle and Lewis, for the plaintiffs in error.
    *For the United States.

    — The general question is, whether the cargo of tbe ship Missouri was liable to tbe payment of foreign duties, on tbe 15th of November 1802, when sbe returned to the *port of pg/^g Philadelphia. It will be attempted to maintain tbe affirmative on two *- grounds : 1st. That sbe bad not a register in force. 2d. That sbe was not then entitled to be registered anew.

      discussion does not turn upon tbe fact of American own-upon tbe legal existence, of an American register. *lst. Tbe ersbip, but
    oUjeot of tbe law was to secure to American citizens, tbe ex-elusive benefit of American tonnage and navigation. Tbe means employed were directed, to ascertain, first, tbe fact that tbe vessel was American built; and secondly, to trace every change of ownership, in whole, or in part.
    And the means being suited to tbe object, all theories, all arguments ab inconvenienti, must yield to the positive terms of tbe law, in this instance, as in numerous other instances of forfeiture under the navigation and revenue laws. In order to ascertain the changes or transfers of property, considerations respecting the transfer to an alien, whether the vessel was in port or at sea, on the one hand; and on the other hand, respecting the transfer to a citizen, whether the vessel was in port or at sea, naturally occurred. Now, no American vessel, wherever she may be, if sold to an alien, can be registered anew. In England, a bill of sale to an alien is void, without tne consent of three-fourths of the owners, indorsed upon the certificate. In America, there is no such provision ; but still, upon a clandestine sale of a part-owner the innocent owners are protected to the amount of their interest in ‘.he vessel. 4 vol. Acts Cong. 11; Abbot, 45; 13 Geo. III., c. 26; 2 vol. Acts Cong. р. 131, § 16, 17, 7; Abbot, 30; 26 Geo. III., c. 60, § 15. Again, an American vessel, if sold even to a citizen, must, upon every sale, in whole or in part, be registered anew; the old register must be surrendered ; the bill of sale must be in writing, containing a recital of the register ; and on every entry at a port of the United States, the mesne transfers must be disclosed. 2 vol. p. 131, § 14, 17. In England, a distinct provision is made for cases, in which vessels are sold, when in port; and for cases, in which they are sold, while at sea. For the former, it is required, that an indorsement shall be made on the register ; or that the vessel be registered anew, at the option of the remaining owners, without which the sale is void. (7 & 8 Wm. III., с. 22, § 21; 34 Geo. III, c. 68, § 15, 21.) And for the latter, it is required, in order to render the sale valid, that the bill of sale shall recite the register ; that a copy of the bill of sale be delivered to the commissioners ; that notice of the transfer be given at the ship’s port; and that the indorsement be made on the register, when the ship returns. (Ibid.) But in America, the only provision in the case of a sale of a vessel at sea is contained in the 14th section of the law (2 vol. p. 131); while the sale of a vessel in port is anxiously guarded, as well by that section, as by the 14th, 11th and 12th sections. The registering bond does not embrace the case of a sale, while the vessel is at sea ; the 17th section only requires a disclosure of the fact, without declaring any consequence ; and in short, it is only in the 14th section, that any provision is made for a formal bill of sale, for a surrender of the old register, or for the taking out of a new one. And yet, the policy which prescribes such guards against unlawful transfers, while a vessel is in port, operates |!382l more forcibly in the *cases of a transfer, while a vessel is at sea. The legislative jealousy of sales abroad, is manifested, indeed, by the provision, which disqualifies citizens, resident in foreign countries (with a few exceptions) from being holders of American registered vessels. (2 vol. 132, § 2, 134, § 4.) Then, if the policy of the law is general, so are the words of the 14th section of the act, embracing every sale of a vessel, in whole or in part, at home or abroad ; and to preserve the American privileges of the vessel, the requisites of the section are, a new register on the sale, a surrender of the old register, and a bill of sale, reciting the register. On the sale of the Missouri, to Koch and his associates, her old register ceased to be in force. A new one might be obtained, provided, at the time of applying for it, the old one was surrendered, and a bill of sale, in due form, was produced : but after vacating the old register by a sale, the ship ceased to be privileged, until a new register was obtained. A formal bill of sale is a sine qua non, in every case ; and emphatically, it is necessary in the case of a sale, while a vessel is at sea, as the act of congress provides no other guard against an unlawful transfer. Besides, why should the 17th section mex-ely require, upon the entry of a vessel from abroad, a disclosure of the fact, whether there has been any antecedent change of ownership, if it was not to bring the case within the px-ovisions of the 14th section of the act? And if a vessel sold at home, is subject to the rigor of all the regxxlations of the 14th section, or what principle can a vessel sold abx-oad pretend to an exemption ? Is it not more within the policy, spirit and langxxage of the law, to say, that the vessel ;Bold abroad, shall, like the vessel sold at home, lose her privilege upon the sale ; and as the danger of unlawful sales is greater abroad than at home, she shall remain unprivileged, until the actual renewal of her register ? In illusl ration of the argument on this point, the following authorities were cited : 3 T. R. 406; 3 Bro. Ch. 571; s. c. 5 T. R. 710; 1 Ibid. 306; 2 East 399; 1 Bos. & Pul. 483.
    2d. Nor was the Missouri even entitled to be registered anew, at the time of her return to the port of Philadelphia. There did not then exist a bill of sale, reciting the register ; and the recital might as easily be made from the record at the custom-house, as from the certificate of registry carried with the vessel.
    The construction now contended for, has uniformly prevailed in the treasury department; and contemporaneous construction ought to be regarded in deciding upon a doubtful law. (Park. 215.) Legislative construction is also in favor of the United- States, for the very case of a vessel sold while at sea, has been specially introduced into the system (6 vol. 223, § 3); the power to remit the foreign duties incurred by such sale has been vested in the secretary of the treasury ; and legislative construction of a legislative act, where the words are doubtful, ought to be conclusive. (Parker 217.)
    *For Willings & Francis.

    — In the present case, there is no sug- r*ggg gestión of alien ownership, or malaftües of any kind. The meaning L of the legislature should, therefore, be perfectly clear, before a decision inflicting, in effect, a heavy penalty, on the plaintiffs in error, is pronounced. The general policy of the law is, to give an advantage to the American citizen ; and if its language is at all obscure, he is entitled to the most beneficial interpretation. In this view of the controversy, the recapitulation of a few plain rules, will lead to a favorable result. 1st. A vessel can have but one register, at the same time. 2d. The certificate of the registry is delivered to the master of the vessel, when he leaves the port, and must be deposited at the custom-house upon his return. 3d. The register remains in force, until it has been legally vacated or cancelled. 4th. On a change of property, whether in whole or in part, a new register must be taken out; but no new register can be granted, until the old one is surrendered. 5th. The execution of a bill of sale, reciting the register, will not authorize the granting of a new register, without such surrender of the old one ; but both must concur for that purpose.
    In no part of the law, is a particular time prescribed, either for the execution of a bill of sale, or for the application for a new register. The 14th section amounts to nothing more than a declaration, that a vessel, which has been sold, in whole or in part, shall not enjoy the American privileges, until she is registered anew ; but the word “ when ” is not used as an adverb of time ; nor does the section require, that the vessel shall be registered anew, at the moment of the transfer. If, therefore, the bill of sale is executed, and the old register surrendered, when an application is first made for the enjoyment of American privileges, the words and policy of the law are satisfied ; nor will the court go beyond the words of a law, to create a forfeiture. (1 Bos. & Pul. 483; 19 Vin. Abr. 512, pl. 8, 9; 3 T. R. 401; 2 East 399.) The lith section of the act, however, seems to fix the sense of the legislature ; for it obviously contemplates the disclosure of a transfer, while the vessel was at sea ; and if the oath which it prescribes, is truly taken, there is no forfeiture of her American character.
    The doctrine contended for, on behalf of the United States, would introduce the greatest mischiefs. Could congress mean (in an act, too, for the benefit of American tonnage and navigation), so to tie up the property in ships, that, while they are at sea, they could not be sold, without incurring a forfeiture of their privileges ? And is it consistent with justice and reason, that the innocent shippers of a cargo on board an American vessel, should be taxed with the payment of foreign duties, in consequence of successive transfers, to which they were neither parties nor privies ? To these inconveniences, the claim of foreign duties, in this ease, adds the reproach, *3841 conSress has required *an impossibility ; to wit, the immediate -* surrender of the register at the custom-house, while, in fact, it was on board of the vessel, at sea.
    As to a contemporary construction, it is not clearly and uniformly shown, in favor of the adverse doctrine ; nor, if it were, could it prevail against the plain words and obvious meaning of the law. And as to a supposed legislative construction of the act of the 2d of March 1803 (6 vol. 223, § 3, 4), the act is merely affirmative ; and even if it were declaratory of the legislative opinion, upon the previous state of the law, it could not be binding upon the judges, who must exercise their own judgments upon the law itself, independent of legislative exposition.

       s. c. 1 W. C. C. 125, which is a better report of the opinion of Washington, J,

         Before the decision of the district court, on the principal question, a preliminary point of some importance was determined. By the 65th section of the impost law (4 vol. 386-7), it is provided, that “where suit shall be instituted on any bond for the recovery of duties due to the United States, it shall be the duty of the court where the same shall be pending, to grant judgment at the return term, upon motion,unless the defendant shall, in open court, the United States attorney being present, make oath or affirmation, that an error has beep committed in the liquidation of the duties demanded upon such bond, specifying the errors alleged to have been committed, and that the same have been notified in writing to the collector of the district, prior to the commencement of the return-term aforesaid. Whereupon, if the court be satisfied, that a continuance until the next succeeding term is necessary for the attainment of justice, and not otherwise, a continuance may bo granted, until next succeeding term and no longer.”
      In order to obtain a continuance of the cause, at the return-term, the defendants filed the following affidavit: “Thomas W. Francis, one of the above defendants, being duly sworn, deposeth, that an error has been committed in the liquidation of the duties demanded on the above bond, for which this suit is brought, inasmuch as the sum of $7720.41 is thereby demanded for duties on goods, per the ship Missouri, whereas, the sum of $7018.73 only was due for the same, the said ship, the Missouri, being a registered ship, belonging to citizens of the United States, and not a foreign or unregistered ship, or liable to foreign duties. And the said Thomas W. Francis further deposes, that the above errors have been notified in writing to the collector of the district of Phil idelphia, before the commencement of this present term, being the return-term to which the above action was brought, and that this deponent did, in behalf of himself and the other obligors in the said bond, on the 16th day of May last, tender to the cashier of the bank of the United States, where the said bond was deposited for collection, the last-mentioned sum of money ($7018.73) being, as this deponent verily believes, the whole amount thereon due: that the said cashier of the bank refusing to receive the same, this deponent, in behalf of the aforesaid, tendered the same sum of money to the collector of the district of Philadelphia, on the 17th day of the same month, being as soon as he could ascertain by inquiry that the said bond had been returned from the bank of the United States to the collector. That the said collector also refused to receive the same; that this deponent afterwards, to wit, on the 7th of July last, did pay to the attorney of the district of Pennsylvania the said sum of $7018.73, say, seven thousand and eighteen dollars and seventy-three cents, on the terms and conditions expressed in a receipt, whereof a copy is hereunto annexed.”

        Balias (the district-attorney) insisted, that the cause assigned for a postponement of trial, in the affidavit, was not an error in the liquidation of the duties; for the manifest policy and intent of the law, where to enforce a payment of the revenue, against every plea or pretext, except a plain error in fact; and here, no error in the calculation of figures, no accidental error in the rate of duties, was assigned; but a defence was suggested, upon a principle, which would equally apply to a charge of foreign duties, made in consequence of any other description of forfeiture and disability, under the acts of congress; though the secretary of the treasury was vested with a special power of remission and mitigation in such cases.
      After argument, however {1lawle and Lewis being for the defendants), the district judge decided, that the cause assigned for a postponement, was within the terms and meaning of the act of congress.
      The opinion of the court, on the principal question, was afterwards delivered in the following terms:
      Peters, District Judge. — This is a suit commenced on a custom-house bond, for one-half the duties due to the United States, by the defendants, Willings & Francis, on goods imported in the ship Missouri, from Canton. The bond is in the usual form, dated the 15th of November 1802; and was given with other bonds for duties, as charged at the custom-house, amounting to $15,440.82; being the sum chargeable on goods imported in a ship belonging to a foreigner. For the facts, I refer to the pleadings on file. The real point in dispute is, “Whether the goods imported in the ship Missouri are liable to foreign or domestic duties ?” There is no doubt, and by the joinder in demurrer it is allowed, that the ship, when the goods were laden, and ever since, did belong to citizens of the United States. And if they had been the same citizens to whom the ship belonged at the time of her clearing out at the American custom-house, before her departure for Canton, only the domestic duties could have been charged. These would have amounted to $14,036.73, causing a difference in favor of the defendants, Willings & Francis, of $1404.09. This sum only is in dispute, at this time, though, it is said, the defendants are affected by the point in controversy, to a considerable amount. But the difficulty is created by a transfer having been made by Willings & Francis, the original owners, to Jacob Gerard Koch and others, also citizens of the United States, of apart of the ship Missouri, while at sea and on her voyage. No bill of sale, reciting the register of the ship, was made, until after her arrival at the port of Philadelphia. A parol sale was made which, though legal, bond file and effectual, as between the parties, was not so conformable to the law of the United States, as to entitle the vendees to have their names inserted in a new register. Finally (after the sale by parol before mentioned and a resale to the original owners), a bill of sale was given agreeable to law, and the vessel obtained a new register, though the duties remained as at first charged at the custom-house. T. W. Francis, at the time of the entry, disclosed all fne circumstances, and the whole proceedings are bond file and withont fraud, or any improper intention. The amount having been liquidated at the custom-house as for foreign duties, and the bond before mentioned, among others, given for their amount, a suit was commenced in this court thereon. At the return of the writ, the attorney of the district moved for judgment agreeable to the act of congress. The defendants filed an affidavit in legal form, requesting a trial or a continuance, because they alleged there had been an error in the liquidation of the account at the custom-house, owing to foreign, instead of domestic, duties having been charged. On mature consideration, and after diligent and careful examination into the technical meaning of tbe word “ liquidation,” as explained by the best authorities, both legal and philological, I was of opinion, that the court was bound to comply with the defendant’s request. The authority of the court to give an opportunity for legal investigation, is grounded on the true meaning of this word liquidation, which comprehends the principles, as well as arrangements of accounts.
      The case has been ably argued on both sides. The whole controversy turns on the 14th section of the act entitled “ an act concerning the registering and recording of ships and vessels,” passed the 31st of December 1792. A very extensive range has been taken by the counsel on both sides of the question. The principles, intent and policy of the act have been investigated with much ability and talent. I do not hesitate to say, that to me this question, on the words of the section, is difficult, though one of the counsel for the defendants seems to consider the case as perfectly clear. I do not give an opinion upon it, with confidence, though my duty requires it, and I must decide. Were I in a situation to say what the law ought, in this case, to have been, I should have a clear conviction, and would, accordingly, decide in favor of the defendants. I should be warranted in this opinion, by the law as it now is. The knotty part of the question, is that affected by the time when, in the 14th section. “ When any ship or vessel, which shall have been registered pursuant to this act, or the act hereby in part repealed, shall, in whole or in part, be sold or transferred to a citizen or citizens of the United States, or shall be altered in form, &c.”
      On the part of the defendants, it is insisted, that the word when means any time after the arrival of the vessel, at the port where a new register can be legally obtained And according to Lord Coke’s opinion, when one is bound to do an act, but no time fixed, the party has his whole lifetime allowed to perform it. Authorities were produced to show, that in the construction of even penal statutes, the spirit, and intent and policy of the law might be called in aid, where words are doubtful: that it is impossible to procure the new register, until the certificate of registry is delivered up: that this cannot be done, before her return from her voyage ; and until it is done, provided it be accomplished before her proceeding on another voyage, she is still to be considered as holding her original character; and therefore, not subject to the disabilities attached to a foreign ship. That if it were otherwise, the law would be oppressive on our own citizens, although its policy is grounded in a system to serve them, while it prohibited foreign ships from trading, on terms so beneficial as those of our own nation. That if the word “ when ” could not be satisfied, but by a new register, procured at the time of the sale, it would amount to an unjust and burdensome exclusion of all sales to citizens, of our vessels, in whole or in part, while at sea or on their voyages; to the great injury of our commerce, and ruinous embarrassment of our merchants, whose necessities or plans required transfers of their vessels, either to relieve them from pressures, or enable them to form new speculations. That such a rigorous construction might be justifiable, when ships in port were sold or transferred, because their certificates of registry were attainable. But as the law does not compel parties to impossibilities (lex non cogit ad vmposaibilm), it is otherwise, when ships are at sea. It satisfies the law, if the new register is applied for, when the temporary impracticability is removed. True it is, that foreigners can never obtain new registers, under transfers or sales from Ameri tan citizens. All the precautionary measures of the law are aimed at them. The oath at the time of entry must disclose the owners; or foreign character will be presumed. This shows that if the oath is taken, and no foreign ownership appears, it is all the law requires to establish the American character. But the character of the vessel sold by one American citizen to another, was not even suspended, by the clause under consideration, until after her departure from the port whereat she could have obtained a new register, on her arrival from her voyage, during which the sale or transfer was made. It is, therefore, concluded that domestic, and not foreign, duties should have been charged on the goods imported in the ship in question. And that as to the law of the 3d March 1803, it neither has or should have any influence on a precedent transaction: it only fixes the time when a new register must be applied for, which was before uncertain: it also gives power to the secretary of the treasury to remit penalties and forfeitures and remove disabilities, in past as well as future cases.
      On behalf of the United States, it was contended, that as no time was fixed in the law for renewing the register, it must be done instamter. Where a disability is the consequence, it cannot be removed, until the renewal is completed. If it cannot be done at the moment, owing to impediments not then to be overcome, the party laboring under them must suffer temporary inconveniences, which it was in his power to foresee. In England, where the character of the ship is not altered, an arrangement was made of sending information of the transfer immediately to the custom-house. According to British authorities, though they relate only to the validity of the transfer as between the parties, it is said, 2 East 404, that “ if the act of parliament (dictating this measure) were to be considered as giving an indefinite time (or even a reasonable time, after the execution) for the compliance with its requisites; it would enable a transfer of property to bo made to foreigners, who might remain concealed owners, until the return of the vessel to her port, which might not be for a great length of time.” No time being fixed in the 14th section, it must be instanter. A number of extracts from the laws of the United States were produced, to show, that all these laws required the strictest attention to their injunctions, under the severest penalties and forfeitures. That it is not denied that one citizen may sell and transfer to another a ship at sea: but if it is done, the sale is subject to inconveniences on which the parties ought to calculate or take the consequences. The law is or ought to be known to everybody. Those who are shippers of goods should make themselves masters of the subject, both as it relates to sales to citizens and to foreigners, or suffer any inconveniences arising from want of caution. It was asserted, that the fiscal officers had uniformly construed the law. as it is now contended for. The congress passing this law meant to exclude sales at sea, to prevent the use of our vessels covertly by foreigners. The register of the Missouri was vacated on the 12th February 1801: she was from that time subject to the disabilities of a foreign ship, until her character was revived: and that could not be done until after the 21st December 1802, when the legal bill of sale was made. No subsequent transaction can, by relation, operate on the duties chargeable, though the character of the ship may be restored. If the foreign character of the vessel existed at the time of the liquidation, no ex post faeto proceedings can alter the then existing circumstances. There is no distinction in the law between a sale in port, or one at sea: an immediate application for a new register is required in both cases. If it cannot be had, on a sale at sea, it shows the law meant to exclude the vessel for the time from her American character: eo instamti, that the property is changed, her character ceases or is suspended according as she is sold to a foreigner or a citizen. A number of British cases were produced ; and said to he analogous, though in that country, they related to change of property. In this, the principles apply to change of character. 3 T. R. 406; 3 Bro. Ch. 571; 5 T. R. 710; 2 East 399, 404; 1 Bos. & Pul. 483; Parker 215. There is no distinction in the laws of the United States, as they relate to a sale either to a citizen or a foreigner, in the point of time, in which the American character ceases to operate: in both cases, the cessation is at the moment of sale. The citizen may revive it, hut the foreigner never can.
      The law of March 1803, was produced to show a legislative construction. And the custom of the fiscal officers was said to be a contemporaneous and continued interpretation. Although I may not have done justice to the arguments of the counsel on either side, I have thought it proper to recite them in a summary way, to show the conflict of opinion, on the subject.
      For myself, I declare, that, although the interpretation given on the part of the United States, is not consistent with my ideas of what the law should have been, I do not see that I am authorized judicially to pronounce that it was not, as on the part oi the United States, it is contended to have been, at the time of the transaction, which is the subject of discussion. It appears to me, that the congress enacting the law of 1792, in their zeal to exclude foreigners, did not see, or chose to think lightly of, the inconveniences to which, in such cases as the one now before me, they subjected our own citizens. It also seems to me, a case omitted, either accidentally or with design. The legislature alone were competent to remedy the defect: and they have done this, in cases occurring after their act of March 1803. In the department in which I am placed, I am not competent to give relief; or by interpretations of supposed spirit and intention, supply omissions, or add to the provisions of the then existing law. In cases attended with such unmerited penalties, it is consolatory, that the laws of our country have not left the parties without protection. The congress of 1803, sensible of the hardships consequent on a rigid construction of the former law, have specially and clearly authorized the secretary of the treasury to remit “ any foreign duties, which shall have been incurred,” by reason of disabilities, happening under the former laws, recited in the act of March 1803. Tliere is no doubt in my mind, that this (the foreign duties having been incurred under the former laws, by a temporary disability and incapacity to obtain a new register) is a case proper for the deliberation of the officer vested with the power of mitigating or dispensing with the severity of fiscal laws. He may (if he so inclines, under the circumstances stated to him) give the relief which the austerity of judicial duty disables a court from affording. Although this is my view of the subject, I think it a hard case, and that it ought not to rest on my opinion. I shall deem myself bound to give every facility to an appeal. If other cases, depending on the same point, occur, I shall, on payment of the undisputed part of the demand, suspend judgment (or grant it on terms) for the contested sums, until the opinion of a superior court can be had; if the parties affected shall choose to take that course.
      Let judgment be entered for the sum now due to the United-States. I understand, that the domestic duties in part of the bond have been paid.

   Washington, Justice.

— Although the pleadings, in this case, are lengthy, it has been agreed by both parties, that the only question to be considered and decided, upon the whole record, is, whether the cargo imported in the ship Missouri, is subject to the payment of foreign or of domestic, duties ?

By the first section of the “ act concerning the registering and recording of ships or vessels,” passed on the 31st of December 1792, it was provided, that all vessels, registered pursuant to that law, should be denominated and deemed vessels of the United States : and all vessels of the United States, are entitled, by law, to certain benefits and privileges denied to foreign vessels ; so long as they shall continue to be wholly owned, and to be commanded, by a citizen or citizens of the United States.

The ship Missouri was a duly registered vessel of the United States, and has always continued to be owned and commanded by citizens. She was, therefore, entitled to the benefits and privileges of her American character, when she arrived at the port of Philadelphia, in November 1802 ; unless the partial sale made to American citizens, while she ivas at sea, deprived her of that character. Whether the transaction referred to, produced such an effect, may, I think, be decided upon a joint consideration of the fourteenth and first sections of the registering act alone; though other sections will afford fair ground for reasoning and illustration.

The 14th section is composed of several sentences, which must be distinctly, as well as collectively, considered, to ascertain the general meaning and result. The first sentence declares, that when a registered vessel is sold to a citizen, she shall be registered anew, by her former name, or she shall cease to be deemed a vessel of the United States, and that her former register shall be delivered up, at the time of applying for a new one. The second sentence declares, that in every such case of sale or transfer, there shall be a bill of sale, reciting, at length, the certificate of registry, otherwise the vessel shall be incapable of being registered anew. And the third sentence declares, generally, *that in every case, in which a ves- r*gog sel is required to be registered anew, she shall not be entitled to the L privileges of a vessel of the United States, if she is not so registered.

It is difficult to conjecture, why, in the first sentence, the want of a new register should be declared, within a parenthesis, to deprive a vessel of her American character ; and that, in the third sentence, the same effect should be again declared, for the same cause. The latter declaration, however, is obviously, tautology: for if the former declaration can be said to have destroyed the privilege, eo instanti, when the sale was effected; it was useless and superflous to repeat, that the vessel should not, at any subsequent period, be entitled to enjoy it. The clear meaning, however, of both sentences, appears to be, that the vessel should lose her American privileges, not simply upon the sale, but upon the neglect to obtain a new registry, after the sale. It is here, then, material to inquire, in what manner, and on what terms, a new registry can be obtained ? A bill of sale, reciting the old certificate of registry, must be produced to the collector. The old certificate of registry must also be surrendered. Now, though a bill of sale might be formally executed, in the absence of the ship ; yet, the ship is bound, by law, to carry the certificate of her registry with her ; and consequently, it is impossible for her owner to surrender that instrument to the collector, while she is herself at sea. If, however, the surrender of the certificate must be made, or the privilege must be lost, it is manifest, that the law either requires the performance of an impossibility (which is not hastily to be imputed to the expression, and never to the intention of a law), or it prohibits, in effect, the sale of a ship, at sea, by one of our citizens to another.

There is no part of our navigation system, that expressly avows this to be the intention of the legislature ; and from what principle of public policy can it be inferred or presumed ? The cargo is not liable to the claim of foreign duties, until an actual sale of the ship ; and why should the owner of the cargo lose his privilege, on account of the sale, which is an act of the owner of the ship alone ? Or be punished as for a fault, on account of the neglect of the owner of the ship to take out a new register ; an omission which the owner of the cargo can neither prevent nor supply ? Even, however, with respect to the ship, why, I repeat, should the privilege be lost, and her owner punished^as for a fault, in omitting to deliver an instrument to the collector, on shore, which the law directs to be kept on board her, at sea ? A consequence more injurious would not proceed from a sale to an alien ; and yet, in the case of a sale to an alien, the act of congress declares the forfeiture of the American privilege in express words ; as being incurred, eo instanti, on the sale; but no such declaration is made, in the case of a sale to a citizen.

*It appears to me, that the fourth sentence of the 14th section of „. the act is also important; for it declares, that “ if the former certifi- L cate- of registry shall not be delivered up as aforesaid, the owner or owners of the ship or vessel, shall forfeit and pay the sum of $500 And thus, if the construction contended for by the attorney of the United States is correct, the law not only prohibits the sale of a vessel at sea, by one citizen to another, on pain of forfeiting, at the moment of sale, the privileges of the vessel; but subjects the owner to a penalty, although it is physically impossible, that he should do the thing, for the omission of which he is to be punished.

But an American vessel does not cease to be entitled to her privilege, any more by the act of sale, than by the act of altering her form or burden ; both cases being embraced by the provisions of the 14th section. Let us suppose, therefore, that the construction of the vessel should be altered, either in the port to which she belongs, or in any other port: would she lose her privilege, before the owners could have an opportunity to apply for a new registry ? And if not, why should the privileges be lost, before an opportunity occurs to make the application for a new registry, in the case of a sale ? I can perceive no reason for a distinction.

As to the provisions of the l?th section, they are designed to compel a discovery of any transfers of a vessel, which may have been made, during her absence from the port; in order that it might appear, whether she continued to be a privileged vessel of the United States. If it appeared, that she had been transferred to a foreigner, her privileges were forfeited, from the moment of transfer ; and if it appeared, that she had been sold to a citizen, the officers of the customs were enabled, by a knowledge of the fact, to exact the foreign duties, in future, should no application be made for a new registry.

I am, upon the whole, of opinion, that the appellants are not liable for higher duties, than are payable by vessels of the United States ; and consequently, the judgment of the district court must be reversed.

Judgment reversed.

       This judgment was affirmed by the supreme court, in 4 Cr. 48.


author: Washington, Justice. Peters, Justice.

text:
    *OCTOBER TERM, 1804.
    Present — Washington, Justice, and Peters, District Judge.
    Hurst’s Case.

      Privilege of suitor.

    A citizen of another state, who, when in attendance on court as a suitor, has been subpoenaed aa a witness in another case, is privileged from an arrest in execution, issuing from a state court, while at his lodgings ; and the sheriff will be indemnified, by an order of discharge of a court of competent jurisdiction.
    On the affidavit of Timothy Hurst, it appeared that he had come from his residence at New York, to attend the trial of Hurst v. Hurst (in which he was a party), at the present term ; that after his arrival, he had been subpoenaed as a witness, in the case of W. Hurst v. Rodney, which was also upon the trial-list; that yesterday (the 13th of November), while he was at his lodgings, in Hardy’s tavern, he had been arrested by the sheriff, upon a ca. sa. issuing from the supreme court of Pennsylvania; and that he had come to Philadelphia, and was remaining here, at the time of the arrest, only upon the business of his suit, and in obedience to the subpoena.

      Ingersoll, upon these facts,
    moved that Hurst should be discharged from the custody of the sheriff. And he argued, in support of the motion : 1st. That the application was properly addressed to this court, and not to the supreme court. 2d. That a discharge from the ca. sa., by order of the court, without the consent or concurrence of the plaintiff, would not operate as a satisfaction of the debt; and another execution might afterwards be taken out. 3d. That the discharge by a competent court, would excuse and protect the sheriff, in an action for an escape. Barnes 2; Ld. Raym. 1524; Bac. Abr. 631; 5 T. R. 686; 5 Bac. Abr. 617, 673; 1 H. Bl. r*3g8 636; Tidd Pr. 61; 2 Str. 990; 1 Dall. 356;
       3 Ibid. 478; Dyer 60.

      Rawle, in opposition to the discharge,
    insisted, that under the circumstances of this case, Hurst was neither privileged as a witness, nor as a party. 1st. Not as a witness : the arrest was made at the lodgings of the defendant; but although a witness is privileged, while he is going from home, while he is actually attending the court, and while he is returning to his home; he is not privileged while he is at home. 2d. Not as a party : if the privilege of a party is not limited to the same times and places, as the privilege of a witness, its extent is indefinite, and its operation unequal. Is a suitor in this court, residing in Georgia, protected from arrest, as soon as he receives the notice of trial, in his own state, and in every state through which he passes on his journey to Philadelphia ? Again, is every resident citizen of Philadelphia, who has a suit depending, privileged during the trial term, not only while actually attending the court, but while at home, with Ms family ? ' And if not, why should a non-resident suitor be protected at his lodgings, which are his home ? There is, indeed, a distinction between the cases, favorable to the witness; for a witness is under an absolute obligation to attend the court; but a party may prosecute his suit by an attorney, without personal attendance. Besides, the sheriff will be bound to show a regular discharge, in an action for an escape ; and if the supreme court should adhere to the rule in Star vet’s case, the order of this court will not be a justification. 1 Brownl. 15; Barn. 200; 5 T. R. 686; 2 Cha. Ca. 69; T. Raym. 100; 2 Ld. Raym. 1524; 6 Com. Dig. 89, 88; Wood’s Inst. 478; 2 Bro. Abr. 159, tit. Priv., pl. 37.

       s. c. 1 W. C. C. 186.

       It was admitted by the counsel, on both sides, that the authority of Starret’s case, had been often doubted, both on the bench and at the bar, though never expressly overruled.

       See also, 1 Dall. 357 note.

   Washington, Justice.

— I will not examine the powers of the supreme court of the state, upon the present occasion. It is enough, to ascertain that the power of this court is competent to the object proposed. If, indeed, any injury would be done either to the plaintiff in the suit, or to the sheriff (both of whom have acted innocently, and without knowledge of the facts, on which the claim of privilege arises), by our interposition, we might be induced to pause upon the subject. But, as to the plaintiff, it is clear, that he may renew his execution, whenever the privilege ceases : and as to the sheriff, the order of a court of competent jurisdiction, touching the subject-matter, must be a conclusive justification in every other court, acting upon sound principles of law and justice.

To decide the ‘ principal question, therefore, I find it necessary to go no further than to state, that I think the witness was, in *this case, privileged, while he was at his lodgings. The subpoena was in force; and the arrest of the witness, at that place, has all the effects which could be produced by an arrest in the streets while coming to or going from the court.

Peters, Justice.

— I concur in the sentiments that have been expressed by the presiding judge ; and add, as my separate opinion, that the party is entitled to be discharged, upon both the grounds of privilege.

A special order of discharge was, accordingly, made and filed, at the instance of Dallas, who appeared for the sheriff.

       But see the opinion of Yeates, J., in Hannum v. Askew, 1 Yeates 25.


author: The Court,

text:
    Walker et al. v. Smith.

      Factor. — Damages.
    One who accepts a consignment, is liable in damages for a breach of instructions, though his services' were rendered gratuitously.
    Where there is a legal measure of damages, the jury are bound by it, though the action sound in tort.
    Case. On the trial of this cause, the following facts appeared: The plaintiffs were merchants of London ; and in March 1796, shipped and consigned to the defendant certain goods, invoiced at 270?. 14s. 8d. sterling, accompanied with a letter, stating that “ these goods were shipped by order of Mr. J. B., and for his account; and he was to remit ns the amount, on his arrival at Philadelphia: but' since they were shipped, some circumstances have occurred, which have created some doubts in our minds, respecting his solidity ; and by the advice of our friends, we have adopted this method to secure ourselves, through your friendly assistance, which we request on this occasion. As we do not want to deprive B. of the benefits to be derived from the sale of these goods, we wish you to hold them at his disposal, but not to deliver them to him, without being paid for the amount, or having such security given you therefor, as is satisfactory to yourself. Should he not be able to effect either of these, in a reasonable time, we would wish you to dispose of them for our account, and remit us the amount in good bills.” The defendant duly received the goods, but delivered them over to B., without receiving payment, or exacting security; and shortly afterwards, B. failed. The defendant, however, representing other creditors of B., as well as the plaintiffs, made a composition, by which he received for the proportion of the plaintiffs, 151?. 16s. sterling, and remitted that sun to them, without charging commissions, in a letter dated the 11th of December 1800. The plaintiffs refused to ratify the composition, and brought the present suit to recover the invoice value of the goods, witli interest, according to the usage of trade.
    On the trial, Ingersoll assumed three grounds of defence :
    1st. That there was no cause of action; as the defendant had accepted the consign* ment, on principles of mere courtesy, without interest, directly or indirectly; and had exercised a fair and impartial ^discretion, for the equal inter- r^qoo est of all the creditors of B. 2d. That even if the action could be *- maintained, it is a case, in which the jury are at liberty to give less by way of damages than the amount of the loss actually proved. (1 Dall. 180; 2 Wils. 328; 2 Bac. Abr. 266; Bull. N. P. 156; 1 Esp. N. P. 179.) 3d. That the defendant, acting as a general consignee, may be considered as selling the goods to B., and, consequently, is not liable to his principal, for more than he actually received. (Willes 407.)
    For the plaintiffs, J. Sergeant and Dallas contended:
    1st. That although the defendant was not obliged to accept the consignment, yet, if he did accept it, he was answerable, like every other agent or factor, for a breach of the positive orders of his principal. (1 Beawes L. M. 44, 46; Moll. 493, 497; 4 Com. Dig. 227-8; 2 Cha. Cases 57; 4 Rob. 218; 1 Marsh. 206-7, 209, 210.) 2d. That although the jury had a great and useful latitude in cases of tort, and mixed cases of negligence and tort, where no precise standard of damages was established ; the legal discretion of a jury could indulge in no capricious or conjectural estimate, in cases of contract, express or implied, where a mere calculation of figures furnishes a certain and uniform standard of right. (2 W. Bl. 942; 4 T. R. 654-5; 5 Ibid. 255; Barnes 455, 448; 1 Str. 425.) 3d. That on these principles, the defendant was liable for the debt, as if he were a purchaser of the goods; and every purchaser is chargeable with interest, after the usual term of credit is expired. (1 Dall. 265; Doug. 361; 2 Bos. & Pul. 337; Crawford v. Willing, ante, p. 286.)
   The Court,

in their charge to the jury, expressly declared an opinion, that, on the evidence, the plaintiffs were entitled to recover the full amount of the original debt, with such reasonable compensation for the delay of payment, as the jury should think proper.

The jury, however, gave a verdict for only §468.44, which was the amount of the plaintiffs’ demand (after crediting the remittance), estimating the sterling money at par, allowing the defendant a commission, and deducting the interest. The jury added, that the plaintiffs should pay the costs.

*The plaintiffs’ counsel then moved for a new trial, because the r*gai verdict was against law, evidence and the charge of the court: but L after argument, the motion was overruled ; and it was observed by Washington, Justice, that although he was not satisfied with the verdict, nor should he have assented to it as a juror ; yet, the question of damages, or of interest in the nature of damages, belonged so peculiarly to the jury, that he could not allow himself to invade their province ; while he felt a determination to prevent on their part, any invasion of the judicial province of the court.

         For the report of the case, on the motion for a new trial, see 1 W. C. C. 202.

         For a full report of the charge of Washington, J., see 1 W. C. C. 153.

      5) It appears by the record, that the action was brought to October Sessions 1801, and that the declaration was in assumpsit, with the following counts, two in indebitatus assumpsit, for goods sold and delivered and for money had and received, and one quantum valebant.

         The finding of the jury, that the plaintiffs should pay the costs, was, at once, abandoned by the defendant’s counsel, on general principles; but Ingersoll stated, that the first judicial law provided, that the plaintiff should not be allowed costs, if he -ecovered a sum less than $500 (6 vol. 16, § 3; 1 vol. 61, § 20); and that although the action was instituted, when the sum required, in that respect, was only $400 ; yet he referred to a decision of Judge Chase, in the circuit court of Delaware, which pronounced, that the act repealing the latter provision, revived the former, and was to be applied to all suits, present or future. Dallas referred, however, to the acts of congress (5 vol. 237, § 11; 6 vol. 16, §4). And the court declared that the plaintiffs were clearly entitled to costs.