source: Caselaw Access Project

author:
Mr. Justice McKINLEY
      Mr. '.Justice • McLEAN.

license: Public Domain

text:
    Lessee of Angelica Croghan et al., Plaintiff, v. John Nelson, Defendant.
    In making an entry of land, where mistakes occur which are occasioned by the impracticability of ascertaining the relative positions of the objects-called for, the court will correct those mistakes so as to carry out the intentions of the locator.
    This case came up on a certificate of division in opinion between the judges of the court below. It was an ejectment brought in the Circuit Court of the United States for the district -of Kentucky.
    The case was this: .
    On the 16th of August, 1784, William Croghan, under whom the plaintiff claimed title, made the following entry: ■“ William Croghan, assignee, enters 1000 acres of land, part of a military warrant, No. 2023, beginning at a fork of Mayfield creek,- about two miles by water aboye Fort Jefferson, where a branch, occasiohed by the high Waters from the Mississippi, runs out of said creek, and at- high water empties into the river at' the upper end of the iron banks; from said beginning 500 poles, when reduced toa straight line; and then off from the branch towards [the] Mississippi' bn a line parallel to Mayfield creek, until a line from the extremity of said line, parallel with the first' line, will strike Mayfield creek, to include the quantity.”
    On the 29th of November, 1826, a patent was issued to Croghan by the governor of Kentucky, which described the land as follows: “ Beginning at a fork of Mayfield creek, occasioned by high water from the Mississippi river, and which creek or bayou empties into the Mississippi at the upper end of the iron banks, on a walnut, sweet gum, and ash standing on the west bank of the creek; running thence down the bayou or branch aforesaid with the meanders thereof, S..18° W. 134 poles, S. 36° W. 200 poles, S. 48° W. 72 ■poles, S. 18° W. 14 poles, S'. 18° W. 54 poles, S. 30° W. 120 poles; thence S. 110 poles, to two ash trees, a hackberry, and red bud on the west bank of the bayou; thence.N. 75 W. 206 poles, to an elm, a sycamore, and box elder oh the bank of the Mississippi river; thence up the same, with its meanders, and binding on it at low water-mark, N., &c., &c., to a walnut and. two cotton wood trees at the mouth of Mayfield creek; thence, up the creek, with the several meanders thereof, and binding on the same at low watermark, &c., &c., to the beginning.”
    In' 1830, Nelson took out % patent for the fractional north-west quarter of section 32, &c., containing-103 acres.
    The whole dispute being one of location, it is impossible to understand the opinion of the court without a map or diagram.

      the land granted )o Nelson, the line B E being parallel to a line drawn from A to D.
    Upon the trial, the counsel for the defendants asked the c.ourt to instruct the jury, that “if they believe from the evidence that the course of Mayfield creek, from A to D, is correctly laid down, then the line from B towards the'Mississippi river should be run parallel to that to conform to the entry; and if, in running that parallel line, they shall believe fronqthe evidence that the improvement of the defendants is left out, they ought to find for the defendants. But the court were divided in opinion on the'point, whether the second line called for in the entry, should run from B to E, or whether the line from B to C should be taken, and recognised as the true and proper line, it bfeing the line on' which the patent was. founded: One judge being of opinion, that for all the land south and west of a line from B to E the patent was void, and the other jud¿e being of a contrary opinion.
    Upon this.point, the case came up.
    It was argued by Mr. Underwood for Cróghan’s hbirS, who eon-tended that the entry was “precise enough for others to locate other warrants with certainty on the adjacent residuum,” as required by the act of 1779. The fork of the creek being found, it would be easy for a subsequent locator to. run the line to B. Arrived there, and desiring to locate-the “adjacent residuum”, below, I think he has the means of knowing and ascertaining “precisely” the course which'Cróghan’s line from B towards the Mississippi must pursue, and the distance in that direction.
    Entries for land are addressed to the common good sense of'those engaged in appropriating the Vacant domain, and are to be “ special-ana precise,” so that- -subsequent locators shall not be deceived or deluded to their'injury.
    An. entry is to be understood and taken as it would have been understood on the day it was made. See 1 Bibb, 35, 84’2 Bibb, 105; Hardin, 287.
    Rectangular figure-is-not to.be departed from without a strong indication of a contrary intent. 2 Bibb, 120see also cases- referred to under the 29th rule,' in the index to 3 Bibb, under the head Entries.

    A locator, is not-bound to give the -best possible description,-'but it should be certain to a common intent, -and not misleading. 2 Bibb, 144; 1 Bibb, 73, 64.
    With ftiesé rules in the mind of a subsequent .locator, wishing to ascertain, the exact-position of Croghjan’s 1000 acres, and with the entry before him, let us exanñne how he would proceed and -reason upon the subject. He could not know the exact position of the 'lines without making a survey of the entry; but that is equally tru'e in respéct to every entry,-no matter'h.ow- special. He would know that the natural objects called for- were to constitute boundaries of the survey, when made. Thus, a subsequent locator would'know, by-inspecting the entry, that the branch down towards the iron banks from die fork of the creek at A,- upon- the plat, to a point 500 poles, when reduced to a straight line, from the beginning, constituted part of the boundary. He would also know that Mayfield creek, from the fork at A down towards its mouth, constituted another portion of the boundary. With this knowledge, he would find no difficulty in locating -the adjacent residuum, lying eastwardly of the branch and the creek, without interfering with Croghan’s entry. Conceding that a subsequent locator would be ignorant of the true course of the line from B upon the plat towards the Mississippi river, until a survey was actually made, still, if he desired to enter the land west of the branch 'below- Croghan’s entry, and adjoining Croghan’s tract, he-could have done so with perfect safety by calling to adjoin Cro-ghan, without giving the course. If a subsequent locator wished'to enter land below the mouth of Mayfield creek, lying between 'the fiver and Croghan’s entry, supposing there might be land thus situated not covered by Croghan’s entry, he would find no difficulty in making such an entry without interfering with Croghan, by calling to bind on Croghan and the river. Thus it is manifest, that the adjacent residuum,” in the language of the act of 1779, all around Croghan’s entry, might have been appropriated by a subsequent locator, without interfering with C.roghan’s entry. I therefore insist, it is “ certain to a common intent, and not misleading,” in the judicial language of the Appellate Court of Kentucky. A better description than that given will therefore not be required.
    • Mr. Underwood then proceeded to argue, that the line from B should run, not parallel with that part of the creek between A and the mouth of it, but .parallel with the general coursé of the stream, including the part above A, because this would include only 835 acres, and the locator’s, intention was to enter 1000.
    He then referred to a number of Kentucky cases to show, that thfr-intention of the locator tnust be carried out,' &c., &c
   Mr. Justice McKINLEY

delivered the opinion of the court.

This is a case certified to this court from the Circuit Court-for the district of Kentucky.

The plaintiffs brought an action of ejectment, in that court, against the defendants.; and to support their'.action, they read to the jury a patent for 1000 acres of- land, granted by tire state of Kentucky to Charles Croghan, hearing date the 29th of November,-1826, and provéd title in themselves by the will of the said Charles Croghan. The plat marked A was shown to the jury; and the surveyor proved, that the fork of Mayfield creek., at the letter A, was correctly laid down; that five huildred- poles; on a straight line, on the branch. leading from Mayfield creek, would extend the line to letter B, on the plat, where one of the patent-corners was found; and that the plat truly represented the land, granted by the patent.

The defendant then read the following entry of William Croghan, assignee, for 1000 acres, dated 16thof August, 1784, on which the patent is founded, to wit: “ William Croghan, assignee, enters 1000 acres of land, part of a military warrant, No. 2023, beginning at a fork of Mayfield creek, about two1 miles By-water above Fort Jeffer.son, where a branch, occasioned by the high waters from the Mississippi, runs out of said creek, and at high water empties into the river at the upper end of the iron-banks; from said beginning 500 poles, when reduced to a straight line; and then off from the branch towards the Mississippi, on a line parallel to Mayfield creek, until a line from the extremity of said line', parallel with the first line, will strike Mayfield creek, to include the quantity.” The defendants then offered in evidence a patent from the state of Kentucky to Hugh' Nelson, for 103 acres of land, bearing date the 17th of December, 1830; and proved.by the surveyor, that the beginning of the entry .was at A, on the plat, and that the end of the first line was at B,' and if a line were run from B towards the Mississippi river, in a direction parallel with the general course of Mayfield creek,. for twelve miles above the fork at A, it would be tiered line extending from the letter B to the Mississippi river at F. It was also proved, if a line were run from, the comer at B parallel with Mayfield creek, below the fork, to the letter D, at the mouth of the creek, it would-run from B to E, and leave out the land claimed by the defendants. The surveyor- also .proved-, that the various lines on the' plat were correctly laid down from actual survey. ■

“ The counsel for the defendants then prayed the court to instruct the jury, if they believe, from the evidence, that the course of May-field creek from A to D. is correctly laid down, then a line from B towards the Mississippi river should be run parallel to that line, to conform to the entry; and if, in running that parallel line, they shall believe, from the evidence, that the improvement of- the defendants is left out, they ought to find- -for the defendants.-^ But^the court were divided in opinion on the point, whether the second line .called for in the entry should run from B to E, or, whether the line'from B to C should be taken'and recognised as the true and proper line, it being the line on which the patent was founded. One of the judges being of the opinión, that for all the land south and west-pf a line from B to E the patent was void; and the other judge being "of- a contrary opinion. They were also divided in opinion, for therforegoim•• ¡reasons, whether the foregoing instructions ought to be given or,.refused.”

By a statute’of Kentucky, passed the 26th of December, i820, it is required, that all .surveys thereafter to be -made on .entries west'-of Tennessee river should be run according to the calls of the eritry. And “to enable the-register to ascertain, whether the survey is made according to entry, a copy of the entry shall. be returned to the register’s ^office, with the plat and certificate of survey; and any patent issuing on á survey made contrary to the location shall be void "to all intents and purposes,-so far as the'same may be differént and variant from the location.” Thé survey in this case was made on the 5th day of November, 1825; and, the patent; under which the 'defendants elaim, "dated the 17th day of December j 1830, was granted for land sold by the" state -subsequent- to. the date of the patent under which the plaintiffs claim title, and which covers part of the land claimed by the defendants. This brings in question, the legality of the survey, and the- construction of the entry on which it was made, and leads to an examination of the points certified for our determination.

But before we- enter on that duty it will -be proper to consider-the circumstances in which the locator was j>laced when he made the entry. It was. proved in the Circuit Court, that along this branch there was a very dense cane-brake, and the greater part of the land, covered by the patent is still a dense cane-brake. It was also proved, that a line run parallel with the' general' course of Mayfield creek, for twelve'miles abqve the fork, and crossing'the branch, at the "teVminafion of the 500 .poles, from A to B, on the plat, would strike-the Mississippi- river at F, on the plat, a considerable distance below Ihe corner called for in the patent at the letter C. ' And it appears by the plat that the ereek" continues to run- neárly the same course for 300 or 400 yards below the fork, and then runs north of northwest'for about 300 poles.Now"we have a right" to -infer, from the facts proved,' that all the land included in Croghan’s patent,.and all the river-bottom above Mayfield creek, at the date of the -entry, was a dense cane-brake'; because, if an object, pérmanent in its .nature, is proved to exist at' the time of the trial, it is fair to infer that it existed -at the time the entry was made. Crochet v. Greenup,4 Bibb, R. 158. The history and topography -of the great valley of the Mississippi proves satisfactorily, that, where there is a eane-braké now there was one sixty years ago ; and this fairly induces the belief that the cane.upon the rich and alluvion lands is coeval with the oldest trees'-of the forest. As the locator had the means of ascertaining the course of Mayfield creek above the fork, where it .ran across the high lands, and where there was no cane, it .is reasonable to suppose, from the calls of the. entry, that he believed that Mayfield creek, below the fork, ran. nearly at right' angles to the branch in its general course to the river. And he had a right, from the circumstances, also to believe, that the distance'from the fork of the creek to the river was about two miles, when in fact it was less 'than one mile.

It is obvious from these circumstances,' and the calls of the entry, that the locator believed the survey to' be made upon it would approach'as near to a parallelogram as the irregularity-of the two natural boundaries would permit. 'We are led to the conclusion, therefore, that these mistakes were all occasioned by the impracticability of ascertaining the relative positions of the objects called for, and the courses and distances of the lines necessary to include the quantity of land specified in the entry. But mistakes of this character have "been corrected, as far as practicable, by the ¡courts of. Kentucky, in giving construction to entries,' and particularly in two recent cases- like this between military claims and purchases from the state. Rays v. Woods, and Daniel, &c. v. Allison, 2 B. Monroe’s Rep. 224. Keeping these mistakes in view, we will proceed to give construction to the entry. The call to run from the' termination of the base line at B; 500 poles from the fork of the creek at A, and olf from the branch towards the Mississippi-on a line parallel to Mayfield creek, until.a line from the extremity of said line, parallel with the first line, will .strike Mayfield creek, to include the, quantity, presupposes that a line from- the' termination of the base line on the branch, parallel with Mayfield creek, to include the-quantity, would, terminate before it reached the river, otherwise the locator would have called to run to the river. But it was found, when they made the survey, that the whole trea, bounded by the-branch, from the termination of the 500 .poles, Mayfield creek to its mouth, and the Mississippi river, down to the < letter E, the point where a line running from the termination of the base line, parallel • to. Mayfield creek, strikes the river, would include but 887 acres, and when reduced to straight lines, would present a rhomboidal figure, with two extremely acute, and two extremely obtuse angles, instead of..the figure which must have been in the mind of the locator when he made the entry. ' We might, therefore, upon the authority of the cases referred to in 2 B. Monroe’s Rep., sustain -the survey on the ground of the mistakes of the locator, evidently made under the influence of causes well calculated to mislead him. But there -are • other reasons and other .authorities upon which this entry and'survey may be • sustained. It is a well -settled rule of- construction, that where;, there are calls in an entry repugnant to • each other, those which are inconsistent with the main intention of the locator, manifested by the wprds of the entry, shall be rejected to give effect to the entry. For example; distance shall prevail over course, where it appears by other calls in the entry the course has been mistaken. Smith v. Harrow and others, 1 Bibb, 104. A call to include a natural object will prevail ■ over a mistaken distance called for to reach the object. Preeble v. Vanhoozer, 2 Bibb, 118; McIver v. Walker and another, 9 Cranch, 173. Testing the entry by these rules, has it been properly, surveyed ?

Three of the' lines axe natural and permanent boundaries, except the line on the river, which,may be extended in length;, the fourth is artificial and movable. It has been already shown that aline from the termination of the line on the branch, at B, to the river at E, .and thence up the river to the mouth of Mayfield creek, will not include the quantity, of land called for in the- entry. If it is practicable, by'a reasonable construction of the entry, to gire the whole quantity of land called for, it is the duty of the court to give such construction. The mistakes referred to have defeated'the intentions, of the locator, no doubt, as to the- figure- of the survey; but, like all prudent locators,- he provided, as far as he could, against the influence of such mistakes, by requiring that the' two last lines of the survey should be so run as to include the quantity of land called' for jn the entry. To these two lines he gave course, but gave no specific distance to either, that they might be. run long enough to include the quantity; The first of these lines Was to run from the termination of the base liñe atB, “ off, from the branch towards the Mississippi, on a line parallel to Mayfield creek,” but no specific distance is given, nor is any natural object called for as the termination of this line. Its termination was to be governed, therefore, by the relative positions of the objects previously called for, and the aótual distance of the line, on the branch,-from the river, and by the necessary course and distance,that the first and second of these . two lines should run to include the quantity; and therefore he continues the call by saying, “ until a line parallel to the first (the base line) will' strike Mayfield creek, to include the quantity.” The word “ until,” in grammatical construction, modifies and qualifies the words used to give course • and distance, and, in legal construction, the call for course must yield 'to the call for quantity, the latter being the most important call in the entry.

The great and leading-object of every entry is to obtain the quantity of land specified in it;, every other call, therefore, must be regarded as intended to effect this principal object, and- as subordinate" thereto. The call; to run a line parallel with the first, of base line, is, therefore, repugnant to .the call to include the. quantity, and must be rejected. .Because, if this line had been run parallel' with the base line, thé quantify of land would not have been included. -. And for the same- reason the words “ on a line parallel to. Mayfield creek” must be rejected.^ they being, also, repugnant to the call to include the quantity. The survey has,, therefore, in our opinion, been made in' conformity with the entry, by running from the mouth of Mayfield creek, down the river, to the corner at C, that'being the-distance required to include the quantity; and the Hne from-B, another corner, has been properly run to C, that being the course.and distance necessary to: close the survey and to. .include the quantity'of land called for in the entry. It. is the opinion of • this court, therefore, that the .Circuit Court ought to have' refused the instruction prayed for by the defendant’s counsel.

It is -ordered,, that it be certified, to the Circuit Court, that the line fronrB to C “should be taken and recognised as.the true and ' proper, line,” and that the instructions, prayed-by the defendant’s counsel ought to be refused.

Mr. '.Justice • McLEAN.

‘‘.Croghan, assignee, enters 100.Q acres of land, part of a military warrant, No. 2023, beginning at a fork of Mayfiéld creek, about, two miles by water above Fort Jefferson, where a branch occasioned by the high waters from the Mississippi runs out of said creek, and at high water empties into the river, at the upper end of the' iron-banks'; from said beginning, 500 poles when reduced to a straight line, and then off from.the.branch towards the Mississippi, on a line parallel to Mayfield' creek, until a. line from the extremity of said line, parallel with the.first line, will strike :May field-creek to include'the quantity.-”

By a statute of Kentucky passed in 1820, all entries oh military warrants west of the Tennessee river are required to be surveyed agreeably to their calls; and any survey and'patent which shall cover more land than the entjy Calls for, is declared to be'void as to such surplus. There can be no objection to the validity of this law, as it impairs no right.

Under this statute, the court were requested to give a construction to the entry in question. ' The prayer was, that the court .should instruct the jury, “if they believe from the-evidence that the' course of. Mayfield creek, from A to D, (the letter Á being at the fork of the creek, the beginning of the entry, and the-letter D at the mouth, of the creek,) is correctly laid down, then -the line from B (the termination of the first line of 500 poles) towards the Mississippi,should run parallel,to that, or (in other words) to Mayfield creek, to conform to the entry.”

The only dispute is as to- the second line, which is “to run from the branch towards the. Mississippi, on a line parallel to Mayfield creek.” And this was the instruction prayed for, and which was rejected by the court. Had-'the instruction been in the very words of the entry, there would not have been a closer, conformity with it.

The disputed line was called for by the - entry “to run parallel to Mayfield creek.” Now one line to be parallel to another must be equidistant from it.' And that was what the instruction' asked. From the words of the call in the entry, as to this line, the creek, from' the forks to. the nfcuth must havé been intended, as the line designated could only be parallel to'that part óf the creek.

The third line called for in the entry was to run from the termination of the line parallel to Mayfield creek, and “parallel with the first line, so as to strike Mayfield creek to include the quantity.” As. this line strikes the creek at the mouth, and runs on the bank of the Mississippi,' it cannot be varied to include in the survey the thousand acres , called for in the entry. There is a deficiency of one hundred and acres, which covers the land in controversy. And' the question is, whether the second line called for in the entry, to run parallel with Mayfield creek, can he disregarded, and extended so as to include the lands of the defendants and the quantity called for iii the entry.

In my opinion, .this can no more be done than the beginning called for in the entry can be changed, or the first line of the survey. The third line up the Mississippi was, by the entry, “to strike May-field. creek so as to include the quantity.”

It is admitted that Mayfield creek, with its meanders, forms the closing line of the survey.' I know of no principle in the land law of Kentucky which authorizes: a court to disregard the specific calls of an entry, so as to include the- quantity designated. The locator was, no doubt, deceived as to the ground covered by his entry. The- line called to be run so as to Include the thousand acres-being bounde,d by the Mississippi; could not be varied so as to answer the - calls of the entry for' quantity. This was the misfortune of the locator which is chargeable only on himself. ' It is clear that he •cannot disregard the calls of the entry, on any other line, so as to include the quantity.

The injustice .of such a construction to the defendants, seems to me to be clear. Finding the claim of Croghan’s entry designating in plain terms its boundaries, and knowing that by the law he was-limited to-the ealls of his entry, his survey not having be,en made, ■ they purchased the adjacent residuum'. And ! have no doubt that, by the well established principles of the land law in Kentucky, their title-.is good; and, therefore, the instruction prayed for should be given.

In Rays v. Daniels et al., 2 B. Monr. 222, the court say in .reference to this district of country, where -a* patent has issued, the proof of a variance in- the survey from the entry, so as to make the patent void, for the land not included in' the entry, devolves on the adversary claimant.- But they do not say, in that or in -any other case, that where .the locator is limited strictly to the, cáíls of his entry, by a subsequent’entry, or, as in the present case, by an express statute, that the cal! for quantity controls the specific calls of the -entry. There is no' principle better settléd in the land law, than that the. calls in a survey and . patent.’are not" affected by quantity. If'no'.' private and paramount right be interfered yith, whether the survey and patent contain more or less than the quantity called fpr, it-is equally valid. - An entry cannot -call for a greater- number of acres than is authorized by the warrant on -which it is made; but, where the boundaries palled for 'are-specific, and the locator is 'limited strictly to the boundaries of his entry, in making.-his survey, he can no more disregard them than he can disregard the boundaries called for" in his patent,.

Palpable mistakes' in the entry, such as a call for east instead of west, -which is apparent by other calls in the entry, may be corrected: But where there is no mistake or uncertainty in- the calls, to vary them is to make a new entry. This, I conceive, no court has power to' do. ' An entry,, like every other instrument of writing, must be construed by the words used. .And these words can never be extended, by constriictipn, so ,as to infringe upon subsequent 'and bond fide entries..


author: Mr.. Justice

text:
    John Taylor, Junior, and William Blackburne and Co., Claimants of cloths and kerseymeres, Plaintiffs in error, v. The United States, Defendants in error.
    It is the right of an officer of the customs to seize goods which are suspected tcrhave been introduced into the country in violation of the revenue laws, not only in his own district, hut also in any other district than his own. ..
    . And it is wholly immaterial who_ makes the seizure, or whether it was irregularly made or not, or whether the cause assigned originally for the seizure be that for which the condemnation takes place, provided the adjudication is for a sufficient cause.
    In the trial of such a case the officers of the customs who made the seizure are competent witnesses. . : ' .
    A bill of lading, entry, and owner’s oath' concérning other, goods than those seized,' may be admitted as a link in the chain of evidence to show a privity between the parties to commit, a fraud upon the revenue.
    When-a witness on the. part of the United States stated, that' his firm were importers of cloths, and was asked, upon a cross-examination, to state the extent of their importations, to. which he answered, “ formerly we imported large quantities of-woollebs; for three or four years past we have imported but. a few packages annually,” it was a proper question on the part of the United States, “ whether there was any thing in tha state of the market which caused 'the alteration V’

    It was also a proper question, whether other goods than those seized were lying in the custom-house at New York, under circumstances from which the jury infer aoannivance between inconsistent with'fair -
    An invoice of other goods entered at another port, but marked like those seized, ■ was also properly admitted as strengthening the evidence of the true ownership of packages with this mark.
    To rebut the proof of a general usage of an allowance of five.per cent, for mea-'. suréiüent, other invoices were properly introduced in which there was no-such allowance.' . .
    Where a witness was introduced to prove such usage, and had verified his own invoices, it- was .admissible to read a letter which had been addressed to the - witness and was annexed to one of the invoices.
    "Hevende-laws, for the prevention of fraud, for the suppression of a public wrong, or to effect' a public good, are not, in a strict sense, penal acts, although they impose a penalty. But they ought to be so construed as most ef-. fectually to accomplish the intention.of the legislature in passing them, instead of being construed with strictness in favour of the defendant. '
    Concealment .and Under-valuation of goods are good grounds, amongst for a decision of the court, that probable cause of prosecution existed.
    The 68th section of the act of 1799 reaches cases where, by a false and fraudulent uuder-váluatión.less than the amount .of duties required bylaw has been -paid as well as those where’no duties at all have been paid.
    .This case came up by writ .of error from the Circuit Court of toe •United States for the eastern district of Pennsylvania.

      It was an information filed in the District Court of the United States for the eastern district of Pennsylvania against sundry- cases and pieces of cloths and kerseymeres, seized on land, as forfeited.. The information contained thirteen counts.
    ' * The first and second were’founded on the 50th section of the • act of 1799, chap. 128.
    The third on the 68th section of same act.
    The fourth and fifth on the 66th section of same act.
    The sixth, seventh, and eighth on the 4th section of the act of 28th May, 1830, chap. 147.
    The ninth on the 14th section of the act of 14th July,-1832, chap. 224.
    The tenth on the same section as fourth and fifth. .
    The eleventh and twelfth on the same section as sixth, seventh, and eighth.
    The thirteenth on the same section as ninth.
    Upon the first and second counts the jury found a .verdict for the ■ claimants, and upon the remaining counts for the United States. The claimants were John Taylor, jun.', and William Blackburne & Co.
    The claims filed were as follows: — •

      “ John Taylor, jun., late of the city of New York, but now absent from the United States, by Edward .Henry Bradbury, his attorney in fact, comes and claims the said goods, wares, and merchandise, in the said information and-libel mentioned as his property(subject to the repayment of a certain advance or loan of sixty thousand dollars and upwards, thereon made to him by William Blackburne & Co.;) and the said John Taylor, jun-., by his said attorney, alleges, that at the time of the seizure aforesaid he was, .and yet is the true and lawful owner of the said goods [wares] and merchándise, subject as aforesaid. T m t J

    T m t John Iaylor, Jun.,
    • “October, lOtk, 1839. Pr. pro E. H. Bradbury.

      “ Edward Henry Bradbury, being duly sworn, says, the facts above set forth are just and true, to the best of my knowledge and belief. I am the duly authorized attorney in fact of the above named John Taylor, jun. , He was absent from the United States at the time the seizure of the above mentioned goods, wares, and merchandise was made, and has ever since continued, and still is ■ absent from the United States. « E. H. Bradbury.

      “ Sworn, October 11th, 1839, before me.
    “ Ptr. Christian, Alderman.

      “ William Blackburne & Co. claim the said goods, ware's, añd merchandise, in the.said libel’ and • information mentioned, as-the sole property of them, the said William Blackburne & Co., for the purpose of securing and paying an advance of loan thereon made by them to John Taylor, jun., of sixty thousand dollars and upwards; for securing which said loan or advance the said goods .[wares] and merchandise were' delivered to them, long before the said seizure, by the said John Taylor, jun., in whose possession they-were as his property, and remained in their possession as aforesaid at the time .of said seizure, without any notice or knowledge on their part that there was any allegation whatever, that the same had not been duly imported, and the. duties paid or secured; .or, that the "same were on any account liable to seizure, and under the full and entire belief, ’ on their part, that the said goods [wares] and merchandise had been' duly imported and entered,.and the duties thereon paid or secured according.to law.
    ■ 1 October 10$, 1839. “ Wm. Blacrburne. & Co.
    “ Francis Blackburne, being duly sworn, says,T am a member of. the firm of William Blackburnp & Co., mentioned in the foregoing claim. • The facts stated in the foregoing claim are júst and true, to ■ the best of my knowledge and belief. The said firm of William Blackburne & Co., at and before the time of’the seizure of the goods and merchandise mentioned in the said-information and libel, was composed of William Blackburne, Francis Blackburne, Christopher- John Blackburne, and Charles F. Shaw; since thht -time the said Charles F. Shaw has retired from said firm and' is no longer a member thereof. -‘Fits. Blackburne'.

      u Sworn, October 11th, 1839, before me,
    “ Pte.. Chkistian, Alderman.
    ' “ An4 now, , comes John Taylor, jun., and, by
    leave of the court first had, withdraws so much only of his claim' heretofore filed in this case as relates to forty-three pieces of cloths, part of the goods above mentioned, and on behalf of James Buck--ley, claims twenty-nine pieces of cloth, part of said forty-three pieces, as the property of the said'James Buckley, and on behalf of John W. Bradbury, claims fourteen pieces of cloths, the residue of the said forty-three pieces, as the property of the said John W. Bradbury; and the said John Taylor, jun., says, that the said Buckley and Bradbury are respectively the true, sole, and lawful owners of the respective parcels of cloth herein above claimed for them respectively, and, so, being the owners, respectively consigned the said several parcels to the said John Taylor, jun., who, as their consignee and factor, at the time of the seizure aforesáid, held, atid is still entitled to-hold the same, subject to the repayment of the advances made thereon by William Blackburne & Co., in whose actual possession they then were. And the said John Taylor, jun., further says, that the said. Buckley and Bradbury are both resident in England, and were, at and before the time of said seizure, and now are, absent from the United States. « JoHN Tayl0R; Jun.

      , “ John Taylor., jun., being duly sworn, says, that the facts aboye set ’forth are true to the best of his belief.

      “ John Taylob, Jjin.
    “ Sworn-.and subscribed before me, February 12th, 1840.
    “William Milnob, Alderman.”
    .In March, 1840, the case came on'for trial. Some'of the points . of law.which were raised are thus statéd in the record: • And the counsel of the said plaintiffs, to support apd prove the issue on-their part, called as witnesses John J; Logue-, George Gideon,-and'William. Cairns, hiio, "being respectively sworn on their voir dire1 testified that they, went to Blaekburne’s store, and there assistéd in making the seizure of the goods mentioned'-in the said information; the said Logue and Gideon stating that they were, at the time of making- .said seizure, inspectors of the customs in the district of Philadelphia, and the-said Cairns stating that he.was, at the time, of making said seizure, aff inspector of. the 'customs in the port of New York. Whereupon, the said defendants objected to the admission of said "Logue, Gideon, and Cairns,-severally, as witnessed’for the plaintiffs, they being, interested in the, event of .the case. • But the judge overruled.the said objections and admitted the said witnesses, to which admission the> defendants then and there excepted; and the,said Logue, Gideon, and Cairns were thereupon severally-'sworn and examined on behalf of the plaintiffs, and proved the facts -.attending the seizure of the goods, and that certain original marks' on pack-" ages containing the said goods had been erased,- and among them the mark [B]F, which was originally upon one of said packages.
    In the course of the examination of .the said witnesses,- the folio w-1 ing papers were produced and given in evidence, -being the affidavit, warrant, and authority under which, the seizure of the said goods • was made, viz.: A list of the goods seized, affidavit of William Cairns, warrant of Alderman Milnor, ■ authority from-George Wolf, esq-, collector of the-port'of Philadelphia.'’ It was also proved that • the greater part of said goods were. seized in an apartment in' -the second story of the house No. 26 Church alley, adjoining the house No. 24 Church alley, which apartment-was- occupied...by the’ house No. 24 Church alley; into which a, doorway had been cut, the communication between said apartment and. the remainder of the'house No. 26 Chur.ch alley being closed.
    The counsel of the United States, further to prove the ihsue :on. their part, offered in evidence the bill of lading, entry, and owner’s oath,' taken on the 16th of July, 1839, in the month preceding the seizure of the goods in question, of nineteen', cases- of goods,-(not part of the goods seized;) marked [B]F; i a 19. .To all which the said defendants objected; but the judge .overruled the objection, and admitted the'same in evidence.' -Whereupon the .said papers-were read in evidence.
    [The counsel of the United States, further to prove the issue on their parts, ottered evidence to prove that William Blackburne Co. had, m January, 1839, imported certain invoices (no part, of the goods seized) into Philadelphia, and had .entered them at the custom-house there; that the goods so imported had been appraise'd above the invoice prices; that the importers had acquiesced in such' appraisement; ■ and that Francis Blackburne thereupon stated 'that he had passed 140 cases at New York at similar prices, and would cease importing goods here; the counsel stating that this was to. be followed by evidence to show that he never did import info New .York in his own name. All which evidence was objected to by the defendants;- but was admitted by the court, to which the defendants then-and there excepted; and the said, evidence was thereupon given. . And the plaintiffs further proveditiié .Admission of the defendant Taylor, that the said mark [B]F was ’the' mark .of said defendant Francis Blackburne, and .that said Taylor, as the agent- of said Blackburne, ■ had paid freight ■ at New. York for packages of goods imported there with.that mark; and further proved that no importations had been made at that port- in the name of said Francis Blackburne, or of said William Blackburne-&■ Co., previously to the summer of 1839, but-that large importations had been made there in the’name-ofThe claimant, John Taylor, jr. It was proved that the goods seized had been imported into New York, and entered and passed there, and the duties' thereupon paid, but it was no part of tl^e 'evidence or case of the United States, that there had been any fraud or connivance on the part of the officers of .the custom-house of New York with the importers, of said goods.]
    Abraham I. Lewis was examined as a witness on behalf of the United States;' and having "stated that his firm-were importers-of cloths and kerseymeres, and that he had thereby a knowledge of their quality and value, he was asked, on cross-examination, to state extent of the importations of his firm-; and in reply,, said: Formerly, we imported large quantities of woollens; for three, four’, or. five years past, we have imported but a few packages annually.” Whéreupon the counsel of the United States, on re-examination, proposed tha following question,' viz.: “ Was there any thing in the state of the market -which caused the alteration-which you have mentioned, in the amount imported by you within four or five years last past ?” ' To which question the defendants objected. But the jtidge allowed the question, to be put, saying,, the question may .have a bearing on the case, &c. ; that it was but following out the question on the cross-examination. To which decision the defendants then and there excepted.' Whereupon the said question was to the and answered by him.
    The counsel of the United States further-,offered to prove, .by the oath of David Gardiner, that certain goods marked [B]F, .which had been imported, into New York in the ship Eutaw, being the same on -which defendant Francis Blackburne was alleged to have paid the freight as aforesaid, were still in the- custom-house .át New York. To which the defendants objected. . But the judge. overruled the objection,- and admitted, the evidence; to which decision the defendants then and there excepted'. Whereupon the said evidence was.given;
    The. counsel of the United States further offered in evidence an. . invoice of merinoes(not part' of the goods .mentioned in. the in- ' formation) bought of Abel Shaw, entered .-in Philadelphia by. Wm. Blackburne & Co., by ship Franklin, on .the-19th August;. 1839, marked [B]F, 35 a. 53, offered as strengthening the evidence of .the ownership of packages.with this mark. To which the defendants objected. But tHe judge admitted the evidence; to which decision the defendants then and there excépted. Whereupon the said invoice was read in evidence.
    And the counsel, of the United States,-.in rebutter, offered in evidence invoices of Blackburne, -Taylor, and Okie & -Robinson, to show the absence of any such custom as to the' allowance of five p. c. .for measurement, as had been testified to by the'witnesses on the'part of’the defendants.. Which evidence y as. objected to,by the defendants. But the objection was overruled by the court, and the said evidence was admitted; to which decision the. defendants ' then and there excepted. Whereupon said invoices were read.
    The defendants produced and examined John Robinson, of the' firm of Okie & Robinson, and Robert Walker, to -prove an alleged usage of' trade, in England, to make a discount or allowance of five per cent, for measure on cloths and cassimeres; said Robert Walker being cross-examined, several invoices of his.own importa-, tions into the port of New York were shown to--and verified by him: and the said invoices' were placed by plaintiffs’ counsel in the hands of the counsel of the defendants, and one of said invoices was read by the counsel of thé United States to the jury. The counsel of the United States, pending this cross-examination, offered to read to the jury a letter from one Waite to the witness, which accompanied and was annexed to one of the said invoices, and left there-', with in the New York custom-house, on which the goods had been entered, and referring to the said invoice. The- reading of which letter in evidence was objected to by defendants. But the .court admittedthesamieto.be read to the jury; to'which decision the defendants’ counsel excepted. Whereupon the said letter was read in evidence.
    And the counsel of the United Stales further offered in evidence the several invoices which had been shown to defendants’ witness, Robert Walker,' during his cross-examination, and had been verified by him, of goods consigned to and imported by said Robert Walker into New York; the said invoices having been shown to the counsel for the claimants, and one of them read to the court and jury, without objection on the part of the claimant to any of them; which being objected to by defendants, the judge said that he considered them to be already in evidence, inasmuch as one had been read to • the jury, and the others shown to the witness Walker;, verified by him, and shown to the counsel of the defendants, and all were offered for the same purpose, and. that the papers should be considered in evidence. To which 'decision the 'defendants then and there excepted. Whereupon the' said invoices were read to- the jury. .
    And the judge charged the- jury.
    And thereupon the defendants’ counsel excepted to the said charge generally, and to every part thereof; and in addition to said general exception, and without prejudice thereto, specified the following exceptions, to wit:
    That the judge, in his said charge, instructed the jury—
    1. That' the whole proceeding in the seizure of the .goods -in question was, and substantially, in conformity with the act of Con-' gress.
    2. That the objections made to the proceedings are immaterial to the issue now trying.
    3. That the entry of the goods at'New York, their appraisement at the custom-house there, the payment of the duties according to that appraisement, and the delivery of the goods thereupon to the importers,.were not conclusive against the United .States in this case.
    4. That the revenue acts mentioned in this information are not strictly penal laws.
    5. That the duties on the goods were not paid within the meaning of the-68th -section of the act of 1799, (although they had been passed at the custom-house of New York, and-'the duties there assessed upon them had' been paid, according to the value and prices in the invoice,) if the jury should be of opinion that they were not invoiced at their fair and true cost and value.
    6. That the provision of the 66th section' of the act of 1799, mentioned in the charge, was not repealed.
    7. That under the act of 1830, when a package or invoice has been made tip with intention to defraud, the package or invoice (that is; the goods contained in the invoice) are forfeited.
    . 8. That the probable'cause mentioned in the-7th section of. the'. act of 1799, is not a cause existing and known to the persons by whom the seizure was made, antecedent to the seizure, and which was the warrant and ground of the proceedings. The. probable cause intended by the act has no reference to the seizure, but to the trial. There must- be probable cause for the prosecution, not for the seizure, and the court is tó judge of it by what appefirs to the court — by what comes .to the knowledge of the court on the trial of the prosecution.
    9.' That the United States have shown probable cause for the prosecution., and that th&onus probandi was thrown upon the claimants.
    10. That it was not necessary to affirm or deny the doctrine that there can be but one official appraisement of the goods, and that that must be made in the custom-house at which the goods were entered.
    ' 11. That, the first step in the^ inquiry whether the goods are invoiced at- their actual cost, is to ascertain what was their actual cost; and how has this been done on the part of the United States ? By certain appraisements made, in the first place, by official, appraisers of the custom-house of this city; and further, by private appraisers, selected for that purpose. If the opinions of Messrs., Stewart and Simpson (tlie official appraisers at the port of Philadelphia) have not the authority-of an official appraisement or act, .they have, nevertheless, the.wéight of the judgment of men accustomed to other goods of tiffs description, and who, from the appointment, as well 'as their experience, may be presumed to have competent knowledge and skill in ascertaining their value; In this light the. jury may consider their evidence, and give credit to it-accordingly.
    And thereupon, the counsel for .the said claimants did then and there "except to the aforesaid charge and opinions of the said court; and.inasmuch as the said charge and opinions,'so excepted to, do not appear upon thejecord, the said counsel for the said claimants did then and there tender this bill of exceptions to- the opinion of. the said court, and requested the seal of the said judge aforesaid should be put to the same, according to the form of the statute in such case made and provided.
    And thereupon, the aforesaid judge, at the request of the said counsel for the claimants, did put his seal to this bill of exceptions, pursuant to the aforesaid statute in such case made and provided.
    Jos. Hopkinson. [l. s.J

      Meredith and Crittenden, for the plaintiffs -in error.

      Cadwallader and Nelson, attorney-general, for the United States.
    The Reporter was unavoidably absent, and therefore cannot report the arguments of the respective counsel.
   Mr.. Justice

the opinion of the court.

This is a writ of error to the judgment of the Circuit Court of the eastern district of Pennsylvania, affirming the judgment of the District Court founded upon an information in re?n against certain cases of cloths and cassimeres seized on land in the said district. The cause' was tried by a jury, who retúrned a verdict for- the United • States, upon which the judgment was rendered.

' ■ The information contained thirteen counts.. The first and second counts were founded on the 50th section of the Duty-Collection Act of 1799,-chap. 128; the third count was founded on the ,68th section of the same act; .the fourth, fifth, and tenth counts were found- • ed on the 66th section of the same act; the sixth,' seventh, eighth, eleventh, and twelfth counts were founded on the 4th section of the act of the 28th of May, 1830, chap. 147; and the ninth and .thirteenth counts were founded on the 14th section of the act of the 14th of July, 1832, chap. 224. The claimants put in a plea or ' answer denying the allegations in the information, upon which an issue was tendered and joined, and tried by the jury. ■

At the trial, certain exceptions were taken to the matters ruled, and to the charge given by the learned judge who presided at the trial, the form and frame of which exceptions, as propounded by the counsel, we do not propose to examine; and the questions submitted to us arise from the matters of law thus ruled and contained in his charge. With the comments of the learned judge upon the' evidence, except so far as they involved matters of- law, we have nothing to do, as they were submitted solely for the consideration of the jury in weighing .the evidence, of which they were the proper and final judges. .

In the course of the argument in this court, an objection was insisted on, that the seizure itself upon which the information is founded, was irregularly and improperly made, it having.been made-by, the collector of the customs of die port of Philadelphia, when it should have been made by the collector of the customs of the port of New York. And some-reliance in support of this objection seems to have been placed upon the supposed intention of the 68th section of the Duty-Collection Act of 1799, chap. Í28. 'But if any reliance could be placed thereon, vas we think it could not,) it would be completely removed ■by'dhe 70th section of the same act, which makes it the duty of the several officers of the customs to make seizure of all vessels and goods liable to seizure by virtue of that act or any other, act respecting the revenue, as, well without as within their respective districts. So that it is plain from this provision that a seizure made by any officer of the customs of any district would be good, although made within any other district. And the whole structure of the act shows that any officer of the customs had a perfect right to seize goods found in his own district, and indeed that it was his appropriate duty. 0

But the objection itself has no just foundation in law.. At the common law any person may, at his peril, seize for a forfeiture to the government, and, if the government adopts his seizure, and institutes proceedings to enforce the forfeiture, and the. property is condemned, he will be completely justified. So that it is wholly-immaterial in such a casé who makes the seizure, or whether it is irrégularly made or not, or whether the cause assigned originally • for the seizure be that for which the condemnation3fakes place, provided the adjudication is for a sufficient cause. Tjiis doctrine was fully recognised by this court in Hoyt h. Gelston, 3 Wheat. 247, 310, and in Wood v. United States, 16 Peters, 342, 358, 359. And from these decisions we feel not the slightest inclination to depart.

Indeed, if the objection could under any circumstances be maintainable, it was matter that shbuld have been propounded as prelh minary matter in the nature of a plea in abatement of the information, and could constitute no point before the jury upon pleadings addressed to the merits of the case, and involving the direct question of forfeiture or not.

In the course of the trial several objections to the competency of certain witnesses, and to the admissibility of certain evidence, oilered on behalf of the United States, were taken by the claimants. '-In the first place an objection was taken to the competency of John J. Logue, George Gideori, and William Cairns, called to-,support the issue on behalf-of the United States, they being officers of the customs and the person's who niade the seizure of the goods in controversy. By-the 71-st section of íhé Duty-Collection Act.of 1799, chap. 128, the onus probandi to ' establish- the innocence of the property is thrown upon the claimant in all cases where probable cause is ■shown for the seizure and prosecution: And by the 89th section of the same act it is provided, that when in-any prosecution on-account of a seizure judgment shall be given for the claimant, if it shall appear to the court before whom such prosecution shall be tried, that there was a reasonable cause of seizure, the court shall cause a. certificate and entry to be made thereof; and in such case the pereon making the seizure, or the prosecutor, shall not be liable to any action, suit, Or judgment, on account of such seizure and prosecution. The argument, therefore, on behalf of the claimant is, that these witnesses are incompetent, they being interested in the event of the suit, and being liable to an action at the suit of the claimants, if reasonable cause for the seizure, was not established, -and that their testimony in effect would conduce to establish such reasonable cause.

Several answers may be given to.this objection. In the first place, it is npt true, that the mere liability of a party to an action in one •event of a suitwill constitute of itself an absolute or universal objection to his competency. There are many exceptions to the rule on this subject, founded upon necessity, or public policy, or the remoteness, the uncertainty, or the contingent nature of the liability. The present case falls directly within these exceptions. The witnesses were acting as the agents of the government in making the search "and seizure; they alone could give testimony as to the facts attending .such search and seizure, and were, therefore, witnesses from necessity ;• and .their' acts being adopted or authorized by the government, public .policy requires that the- government should have the means of enforcing-its own rights through the instrumentality of their, testimony. Their competency for such purposes falls directly within the reasoning of the Court of King’s Bench in the case of The King v. Williams, 9 Barn. & Cres. 549, and the case of United States v. Murphy, 16 Peters, 203, where the subject was considered very much at large.

- In the next place, the witnesses'were- not objectionable in point of competency ore account of any interest in the event of* the cause. -Their interest, if any they had, as informers or otherwise, in the for- - feiture, was completely removed by the provision of the 91st section of the Duty-Collection Act of 1799, chap. .128, which, when they are. Used as witnesses,- takes away from them the; share of the forfeiture to which they would otherwise be entitled. . In the event of .the suit, therefore, they had no interest, for the suit was solely to enforce, the forfeiture. The question,'whether thefe was .probable Or reasonable cause for-the. seizure, constituted nopurt.of thq- issue to be tried by the juiy. . So far ¡as .it respected throwing .the onus- probandi. upon the claimants, it .Was, a matter solely .for the consideration of the court .in the progress' of. theJ trial, and .collateral to the main inquiry, although of ..great importance in regulating the nature -and extent and sufficiency of the. evidence; And so far as respected the certificate and entry of. reasonable , cause to protect the' seizors from future .liability, for .the seizure,-it 'was-no part of the issue, and, indeed, was an /act to be„. .done, by the' court before whom the prosecution was tried, .only in case judgment upon the verdict should pass for the claimants; and it,.therefore, was plainly an act to be done and inquiry, to be had posterior to the trial. •

'• In the-next place, the objection taken was to the competency of the witnesses, as.such,- for a’ny purposes in the- cause. They were not called by the government as witnesses- to give .evidence of matters showing reasonable or probable cause for the seizure, but as' witnesses generally “to support the issue on the part” of the government. . If competent for any-purpose úpon the'trial, th§y could not be- rejected generally; ■ and that .they were competent, to provethe faqts attending the Seizure of the goods, and that certain original marks' on packages containing the said goods had been erased, and Song'them .the mark [B]F, which was originally upon one of the 1 packages,” cannot, in our judgment, admit of any just doubt. It could, make no difference as to their, admissibility for these, purposes, that", collaterally these- facts might bear upon the question' of probable or Reasonable cause or not.

In the next place, .there -was another and independent .ground upon which their competency is clear. Jt is, that they were acting under a search-warrant in making the search arid seizure; which would undoubtedly, Under the 68th section of the same act, be a complete protection to them against all liability to any Suit therefor, unless, indeed in. a.-case where the witnesses acted from malice, and also without probable cause; and the absence of either would exonerate them from all liability. So that in -this view their1 liability was remote, contingent, and uncertain;

Upon all these grounds we are.of opinion, that the witnesses were clearly admissible.

Another objection was to the' admissibility of a bill of lading, entry, and owner’s oath, taken on the 16th- of July, 1839, in the mpnth preceding the seizure of . the goods-in question,‘of nineteen cases of goods (not part of the goods seized) marked [B]F, 1 a 19. Á1-. though this' evidence was objected to, and it. was.' admitted,, yet' it does not appear upon the record, that any' exception was taken to the ruling. .But) without dwelling upon this, which was perhaps an accidental omission, it is proper to say, that this evidence was not offered as a single, isolated document, (for in -that view it might be .deemed at most as irrelevant and inconsequential for any purpose j) but it was offered in connection with other documents and evidence to establish a privity between Taylor and Blackburne & Co. in other importations of a kindred character, and under' a scheme of meditated fraud upon the revenue of the United States, of which these documents were a link in the chain. ■ For.this purpose they might be important and necessary;' and although the whole evidence'^ not set forth in the record, yet it is apparent, from what, is there found in reference to the next objection, that the evidence had an. intimate connection and bearing upon that which is there stated..

' The objection here alluded to- is in the record stated in the following words: “ The counsel of the United States'” — [see the paragraph in the statement of the Reporter which is included within bracket's.] Ncjw, we think the exception to- this evidence was properly overruled, and the evidence admissible to establish-the connection^between Taylor and. Blackburne’in other importations as well as in the importation of the goods.now in controversy, and also to displace any-presumption that the acts -of the' one;were not properly to be deemed attributable to any connivance with. the other, or that ihey 1 were pot jointly interested in th'e-same scheme of importations, and mutually cognisant of the designs of each other:. What, effect this evidence; ought to have after its admission- irt- the cause, taken in connection with the 'othef' evidence, was a matter.for the consideration of the'jury alone.; but' of its admissibility for the purposes above ■ stated we- -entertain; no- doubt.'-"It is, indeed, a. strange omission in the. record, that .the other evidence .in the 'case is riot therein fully stated, nor the-points, to which'it was adduced, suggested, so that we are left to conjecture from very imperfect materials what was die .true extent and bearing of the.various' matters excepted to as improper evidence.

.Another objection .is to a question put to Abraham- J. Lewis, a -Witness on.behalf of the United-States, who, having'stated that his firm wére. importers of cloths, and kerseymere's, and that he had thereby a knowledge of their' quality, -was asked, ,on' cross-examination, ■to state the extent of the importations of his firm; and in-reply he said,- “Formerly we imported-large quantitities of woollens; for three or four years past we have imported but a few packages1 annually.” Whereupon the counsel for the United States, on re-examination, proposed the following question, viz.: “Was there any thing in the state of the market, which caused the .alteration which you have mentioned in the amount imported by you within four or five years last past?” to which question the claimants objected;' but the judge allowed the- question to be put, saying it might have some bearing on the case, and that it was .but following out the question put on the cross-examination. We think the’ decision of the court was perfectly correct, for the reason stated by the judge. The answer might show that the witness had ceased to import so largely, ■not from want, of skill or capital, but for reasons Which might connect themselves with the importations of the' claimants. What the answer was we do hot know; and certainly it could be ho just ground of exception, that the answer was such as had ho bearing either way upon die merits of the case, and a fortiori not, if favourable to the claimants.

Another objection was to thé'admissibility of the evidence of David Gardner, who was offered to prove that certain goods, marked [B]F, which had been imported into New York,-in. the ship Eutaw, being the same, on which Francis Blackburne was alleged to have ■paid the freight, were still in the custom-house at New York. We think that this evidence was properly admissible, for the same reasons as those which have been already stated. It was a part of the res gestee. If. the other parts, of'the evidence were favourable to the innocence of the claimants in their various importations, then no conclusion against them could fairly be drawn from this fact. But if, .on the other hand, strong circumstances of suspicion of fraud attached to other importations, then the circumstance, so contrary .to-the usual course of mercantile transactions in cases of perishable articles, or. articles liable to depreciation or decay, of their remaining long in the custom-house, might fairly be deemed to inflame those suspicions, especially if in the.interval the government was on the alert to detect supposed frauds in-other importations.

. Another objection was to the admission of the evidence of.an invoice of merinpes, (riot part of the goods mentioned in the information,) entered in Philadelphia, by Blackburne & Co., and marked [B]F, 35 to 53, offered as strengthening the evidence of the ownership of packages with this . mark. In this view-we can perceive no posable question as to the competency or propriety of tire evidence.

Another objection was to the admissibility in evidence of certain invoices of Blackburne, Taylor, Okie & Robinson, to show the ab-. sence of ) any such., usage as to the allowance of five per cent, for measurement, as had been testified to by the witnesses on the part of the claimants. We see no just ground of exception to the admissibility. of such evidence. The set was of a nature, and', all' evidence .which went to establish the want of such generality, by proof of the non-existence of such a deduction in in* voices of a similar nature: — where, if it was general tand well known, it ought to be found — was ■ certainly admissible to rebut the .presumptions derived from the adyerse proof. The same answer may' be given, and indeed applies more forcibly, to the evidence given by Robert Walker, a witness for the claimants, who, upon his cross-examination, verified several invoices of his own importations, into the port of New York; and also a letter of one Waite, annexed to-one of the invoices. ' The introduction of this letter was objected to; but it was an accompaniment of the invoice , introduced without objection, and it was offered not in chief, but as qualifying and repelling the evidence offered by. the claimants as to the five per cent, usage" — founded, among that of'others, upon the very testimony of Walker. The other invoices verified by Walker were, for the sanie reason, in our judgment, equally admissible.

We have thus gone over the various objections taken to the. competency and admissibility of the testimony in this case;, some of which, considering all the circumstances of the case, can scarcely be treated otherwise than as being inter apices juris; and shall now proceed'to examine the exceptions taken to the charge of the court. Of many-of these it is unnecessary to-take any special notice, since they have been already disposed of in the case of Wood v. United States, 16 Peters, 342, or have incidentally fallen under notice- in the preceding parts of this opinion. ■ Upon the point that the re-ve- - nue laws, on which the information was founded, were not, as the judge in the. court below suggested, to be deemed penal laws in the ' sense in which that phrase is sometimes used, it may’-be- proper to say a very few words. He treated the point as not of great importance in the case, as we think it was- not, since it had no tendency to change the interpretation of the provisions of the revenue laws then under his consideration. In one sense, every law imposing a penalty'or forfeiture may be deemed a penal law; in another sense, such laws are often deemed, and truly deserve to be called, remedial. . The judge was therefore strictly accurate, when he stated that“It must not be.understood that every law which imposes a penalty is, therefore, legally speaking, a penal law, that is, a law winch is to be construed with great strictness in favour'.of the -defendant. Laws enacted -for tibe-prevention of .fraud, - for the suppression of a public wrong, or to effect a public- good, are not, in- the strict sense, penal acts, although they may inflict a penalty for violating them.” And he added, “It is in this light I view the revenue laws, and I Would construe them so as most effectually to accomplish the intention of the legislature in passing them.” . The same distinction will be found recognised in the elementary writers, as,- for example,, in Blackstone’s Commentaries, (1 Black. Comm. 88;) and Bacon’s Abridgment, (statute I. 7, 8;) and Comyns’ Digest, (Parliament R. 13, R. 19, R. 20;) and it is also abundantly supported by the authorities. .

The main exception however to the charge is as to the ruling of the judge that-there was probable cause of. seizure, and that, therefore, the onus probandi to establish the innocence of the importation, and to. repel the supposed forfeiture, was upon the claimants. We-entirely concur in the opinion of the judge, in his views of the evidence-, as applicable to this point. . He, and not the jury, was to judge whether there was probable cause or not to throw the onus probandi on the claimants; for the 71st section of the act of 1799, chap. 128; expressly declares that “the onus probandi shall lie on the claimant only where probable cause is shown for such prosecution, to be judged of by the court before whom such prosecution is to be had.” In our judgment, the circumstances were .abundantly sufficient to justify him, nay, to require him to throw the.owws probandi on the claimants.’ The extraordinary circumstances connected with the concealment of the goods, the prevarications and false statements ■ of Blackbume, and the undervaluation of the goods, all required the most plenary proofs on the part" of the claimants, to deliver the property from the perils ■ by which it was surrounded. The original cost of the purchases could-have been fully proved by the claimants, if the transactions were bona fide purchases; and they had the most ample.means within their power to establish it. Taylor and Black-burne were so completely mixed up in these transactions, as principals -and agents, or as joint principals, that, the acts of the one might most justly be attributed -to the other; and in fact they admit of ho reasonable separation as to design or privity of co-operation.

There is but one other exception remaining, which requires any special notice. It is whether the 68th section of the act.of 1799, chap. 128, was intended to reach, or'does reach- cases where, by a false and fraudulent undervaluation, less than the amount of duties required by law has been paid, or whether it applies only to cases where no duties at all have been paid upon the goods. In our opinion, the section was- designed to apply equally to both cases. In the sense of that section all' goods' are forfeited on which, by fraud, all the duties, shall not have been paid, or secured to be paid, which are by law required to be paid or secured thereon.

- Upon the whole, the judgment of the Circuit Court is affirmed.