source: Caselaw Access Project

author: Mr. Justice WAYNE

license: Public Domain

text:
    Edmund B. Caldwell, surviving Partner of James Lynd, Jr. and Company, Plaintiff in error, v. The United States.
    In this case, the court below instructed the jury, that, if the goods were fraudulently entered, it was no matter in whose possession they were when seized, or whether the United States had made an election between the penalties, and that the forfeiture took place when the fraud, if any, was committed, and'the seller of the goods could convey no title to the purchaser.
    This instruction was right in respect to the sixty-eighth section of the act of 1799 (1 Stat. at Large, 677), as the penalty is the forfeiture of the goods without an alternative of their value, but wrong as the instruction applies to the sixty-sixth section of the same act, — as the forfeiture under it is either the goods or their value.

    Under the sixty-eighth section, the forfeiture is the statutory, transfer of right to the goods at the time the oifence is committed. The title of the United States to the goods forfeited is not consummated until after judicial condemnation, but the right to them relates backwards to the time the offence was committed, so as to avoid all intermediate sales of them between the commission of the offence and condemnation.
    But under the sixty-sixth section of the act, in which the forfeiture is the goods or their value, the United States have no title in the goods, until an election has been made either to recover the goods or their value. Therefore, under that section, any rights in the goods acquired bond fide by third persons in the mean time are protected.
    The claimants prayed the court to instruct the jury, that the United States were not entitled to recover under the first and second counts of the information founded on the fiftieth section, unless the goods were unladen and delivered without permits. The jury was told, in reply, — “If the permits were obtained by fraud and improper means, they were of no effect, and a mere nullity. The United States are entitled to recover, if the goods were imported with the view to defraud the revenues.” Whether or not the permits were obtained by fraud or improper means was a point in the cause for the jury to decide, and what the court said upon the prayer was virtually saying to the jury, that a verdict might be returned upon the first and second counts against the claimants, and that they were liable to the penalties of the act for unlading goods without a permit, without saying if they thought that there was evidence enough ¿0 prove the fact against them.
    This case was brought up, by writ of error, from the Circuit Court of the United States for the Eastern District of Pennsylvania.
    The case was this.
    In August, 1839, the attorney of the United States filed an information in the District Court of the United States for the Eastern District of Pennsylvania, against thirty-five remnants of pieces of cloths and cassimere, that had'been seized at th"' store of James Lynd, Jr. & Co.
    The information contained thirteen counts.
    1. Charged, That the goods were brought from a foreign port' into some port or place in the United States, to the attorney of the United States yet unknown, and were unladen and delivered from the vessel in which they had been brought,' without any permit or special license from the collector or naval officer or any other competent officer of the customs. Act of 1799, § 50 (1 Stat. at Large, 665).
    2. Charged, That the goods were brought into the port of New York, and there unladen and delivered without a permit. Act of 1799, <§, 50 (Ibid.).
    3. That the said goods were found concealed in a certain store in the occupation of William Blackburne & Co., at the port of Philadelphia, the duties on said goods not having been paid or secured to be paid. Act of 1799, <§> 68 (1 Stat. at Large, 677).
    4. That the said goods were, on their importation, entered at the office of the collector of New York; and that on each and every of the entries, an invoice of the goods included in the entry was produced and left with the collector. That the said goods were not invoiced according to the actual cost thereof at the place of exportation, but were invoiced at a less sum than the actual cost, with design to evade the duties thereupon, or some part thereof. Act of 1799, § 66 (1 Stat. at Large, 677).

      5. That-entries of the said goods, at the time of their importation, were made at the office of the collector of New York; and that on each of the • entries an invoice of the goods, &e.,was produced and left with the said collector. That all and each of the said invoices so produced, and all and each of the several packages, in each and every of the said invoices in which the said goods were imported, were made up with intent, by a false, valuation, to evade and defraud the revenue of the United States. Act of 1830 (4 Stat. at Large, 410).
    6. That entries of the said goods, at the time of their importation, were made at the office of the collector of New York; that on each of the entries an invoice of the goods was produced and left with the collector; that all and each of the said invoices were made up with intent, by a false valuation, to evade and defraud the revenue of the United States. Act of 1830, § 4 (4 Stat. at Large, 410).
    7. That all and each of the several packages contained in each and every of the entries, and each and every of the invoices so produced, were made up with intent, by a false valuation, to evade and defraud the revenue. Act of 1830, <§.4 (4 Stat. at Large, 410).
    8. Charges that the invoices were made up by a false extension, to evade and defraud the revenue of the United States. Act of 1830 (4 Stat. at Large, 410.)
    9. That the goods, &c., being composed wholly or in part of wool or cotton, were entered, at' the times of their importation, at the office of the Collector of New York; that invoices were produced and left with the collector; that all and each of the packages in each and every of the invoices, and each and every of the entries, were made up with intent to evade and defraud the revenue of the United States. Act of 1832 (4 Stat. at Large, 593).
    Í0. As amended, the same with the 4th.
    11. As amended, the same with the 6th.
    12. As amended, the same with the 7th.
    13. As amended, the same with the 9th.
    To this information the claimants put in three pleas: —
    1st. Traversing the several causes of forfeiture alleged.
    2d. The second plea, which was to all the counts save the two first, alleged that claimants, prior to goods being seized, had bofid fide purchased the goods for full value, without any notice or knowledge of their being liable to seizure or forfeiture, under or by an act of Congress, entitled “ an act to regulate the collection of duties on imports and tonnage,” from persons having the ostensible ownership of them, and that at the time of seizure the goods were in no way whatever concealed, within the meaning of any act of Congress.
    3d. The third plea alleged that the goods, prior to their seizure, had been duly entered, passed through the custom-house, &c., the duties imposed paid, and the goods thereupon delivered to the importers; that afterwards the several packages, of which these goods formed part, were broken up and divided; that subsequently these goods were at sundry times purchased bona, fide, and for full value, from persons having the ostensible ownership of same, and without notice or knowledge that they were liable to seizure or forfeitiire under any act of Congress for any cause; that no part of the goods had been imported or entered by the claimants; that at the time of seizure they were not in original packages, nor concealed, but openly exposed for sale on the shelves of claimants’ store.
    To the first of these, the United States joined issue.
    To the second and third demurred generally, and claimants joined in demurrer.
    These two pleas denying every cause of forfeiture except the single one of the goods having been falsely invoiced, it is believed that all the material questions afterwards arising on the trial of the cause are raised by these demurrers; but for greater caution, the same points were again raised on the trial, in the shape of exceptions to the judge’s charge and otherwise.
    On the trial it appeared that James Lynd, Jr. & Co. kept a wholesale and retail dry goods store in Philadelphia, and were in the habit of purchasing goods from W. Blackburne & Co. and John Taylor, Jr.; that at the time of the seizure, the officer inquired for and took from them, at their store, all the goods which had been purchased from Blackburne &. Co., or from John Taylor, Jr.; and that the goods seized were at the time distributed among other goods in single pieces and parts of pieces, on the shelves of claimants’ store, for sale, without any appearance of concealment whatever. ' Evidence was, under objections, offered to show that part of the goods seized corresponded in numbers with pieces forming parts of various invoices that had been in 1S38 and 1839 fraudulently entered by Blackburne and Taylor, at prices below their value in England, whence they had been exported.
    There was no. evidence of any other cause of forfeiture whatever.
    For the purpose of fixing the fraud, evidence was likewise given, under similar objections, of other fraudulent invoices made about the same time by Blackburne and Taylor, and likewise of conversations with Blackburne some days before the seizure, about other invoices and other goods, and the concealment of said other goods from the officers.
    There was no attempt to show that the claimants had any part in this concealment, nor in the making of the false entries; but, on the contrary, it appeared that the goods had been fairly and bona fide purchased and settled for before the seizure.
    The claimants contended, that where goods are imported, entered at the custom-house, duties imposed and paid according to such entry, and a permit and license thereupon granted, under which the goods are delivered to the importer, the original packages subsequently broken, and part of them sold to a bonti fide purchaser without notice, and before the United States bad made any election, the goods so sold are not liable to seizure in the hands of such bona fide holder, though they may have been fraudulently entered by being invoiced below their actual cost; &c.
    The attorney of the United States contended, on the contrary, that, from the moment the fraudulent entry was made, the goods became forfeited, and the title of the United States accrued so as to defeat the right of a subsequent bona fide purchaser without notice, and that when the goods are delivered under a permit obtained under such fraudulent entry, it is as though no permit had been given, and the goods had been delivered without permit.
    The counsel for the claimants asked the court to instruct the jury,—
    First. That there cannot be a forfeiture of the goods under the fourth section of the act of 1830, nor under the fourteenth section of the act of 1832, unless the information alleges, and the United States have proved, all the special circumstances of the examination and detection of the fraud, under the authority of the collector, in the manner pointed out in said acts of Congress.
    On which the court instructed the jury, — This is correct; but there may be a forfeiture under the act of 1799.
    Second. That the probable cause mentioned in the seventy-first section of the act of Congress of 1799', chapter 22, refers to the right of seizure under said act; and the right of seizure depends on the fact, whether, at the time of their being seized, the goods were concealed within the meaning of the sixty-eighth section of said act.
    On which the court instructed the jury, — This is not law as applied to this case. The probable cause applies to all cases of seizure for any fraud under any of the revenue laws, and any section of any such law. Whether there was probable cause for the prosecution does not depend upon whether there was originally ground for the seizure or not, but upon the proof at the trial in support of the prosecution.
    Third. That the term concealed, in said sixty-eighth section, applies only to articles intended to be secreted and withdrawn from public view, on account of the duties not having been paid, or secured to be paid, or from some other fraudulent motive ; which the court answered affirmatively.
    Fourth. That if the goods were not so congealed, nor any probable cause to suspect, their concealment at the time of their seizure, the burden of proof is upon the United States; that neither the existence of probable cause to suspect that goods, upon which the duties had not been paid, or secured to be paid, were in possession of the claimants, nor the fact that goods were found in their possession which had been fraudulently invoiced or entered, is sufficient to justify a seizure under said sixty-eighth section, unless the goods were concealed by them, or they were parties or privies to the false invoices or entries.
    ' On which the court instructed the jury, —• This is not the law. The burden.of proof is not upon the United States, though the goods may not have been concealed, nor any probable cause to suspect their concealment at the time of their seizure, if there was probable cause to believe the duties ■ upon them had not been paid or secured.
    Fifth. That if the goods seized had been fairly and bond fide purchased by the claimants, without any knowledge by them of their being liable to seizure on the part of the United States, and were, at the time of the seizure, openly exposed 'by them for sale in their store, the United States cannot recover under the sixty-sixth or sixty-eighth section of said act of 1799, even though the goods had been fraudulently or falsely invoiced or entered, provided the claimants were in no way parties thereto.
    On which the court instructed the jury, — This is not the law. If the goods were fraudulently entered* it is no matter in whose possession they were when seized; the forfeiture took place when the fraud, if any, was committed, and the seller could convey no title to the purchaser.
    Sixth. That even though the goods in question had been invoiced at less than actual cost thereof at the place of exportation, with design to evade the duties thereupon, the United States had no title in the goods until they made their election, either to recover the goods themselves, or the value thereof; and that any rights in said goods acquired bond fide by third persons in the mean time are protectéd against the right of forfeiture under this section.
    On which the court instructed the jury, — This is not the law. The title of the United States vested at the time the fraud, if any, was committed, and the law authorized them to seize the goods wherever they might he found.
    Seventh. That the United States are not entitled to recover under the first and second counts of the information, unless the goods were unladen, and delivered without permits.
    On which the court charged, — If the permits were obtained by fraud and improper means, they are of no effect, and a mere nullity. The United States are entitled to recover, if the goods were imported with the view to defraud the revenue.
    Eighth. That the burden of proof in this case, under the seventy-first section of the act of 1799, is upon the United States.
    On which the court charged, — This is not so; the burden of proof is on the claimants.
    The counsel for claimants also asked the court to charge, —
    Ninth. That the claimants are not bound to prove the innocence of intent of the importers in making the invoices.
    Tenth. The claimants are not bound to prove the actual cost or value of the goods at the place of exportation.
    Eleventh'. The claimants are not bound to prove innocence of intent of the importers in making their. invoices, nor the actual cost at the place of exportation when they were appraised at the custom-house.
    Twelfth. That the permits, and the delivery of these goods from the custom-house, is a bar in all cases against any forfeitures, except where the claimants are parties or privies to the fraud in obtaining them, or had knowledge of the same.
    Thirteenth. If the vendor is liable to the claimants of the goods seized for indemnity for the forfeiture of them, the' seizure does not invalidate the sale, or impair the title of claimants. thereto. .
    But the court refused so to charge the jury, and further charged, —
    That the United States have shown probable cause for this prosecution, and the claimants are bound to prove the inno-. cence of intent of the importers in making the invoices. That, they are bound to prove the actual cost or value of the goods at the place of exportation, even though they were appraised at the custom-house. That the granting permits, and delivery of these goods from the custom-house, is not a legal bar against forfeiture in all cases, except where the claimants are parties or privies to the fraud in obtaining them, or. had knowledge of the same. And, as to the thirteenth point, that if the goods were fraudulently entered, no title passed to the claimants.
    And thereupon the counsel for the said claimants did then and there except to the aforesaid charge and opinion of the court.
    Under these. instructions of the court, the jury found a verdict for the United States, under the act of 1799, ch. 22, sec. 50 and 66, as to all the goods contained in the libel, except two pieces of cloths, as to which they found for the claimants. The judgment of the District Court followed the finding of the jury.
    Upon the exceptions above stated, the case went up to the Circuit Court, which, on the 9th of November, 1846, affirmed the judgment of the District Court, and a writ of error brought the case up to this court.
    It was argued by Mr. Fallon, for the plaintiff in error, and by Mr. Johnson (Attorney-General), for the United States.

      Mr. Fallon, for the plaintiff in error, made the following points: —
    1. That the court below erred in not giving judgment in their favor on the demurrers.
    2. That the learned judge erred in not instructing the jury, as requested by claimants’ counsel, that if the goods were not, within the meaning of the sixty-eighth section of the act of 1799, concealed, nor any probable cause to suspect their.concealment at the time of their seizure, the burden of proof is-upon the. United States; that neither the existence of probable cause to suspect that goods, upon which the duties had not been paid, or secured to be paid, were in the possession of the claimants, nor the fact that goods were found in their possession which had been fraudulently invoiced or entered, are sufficient to justify a seizure under said sixty-eigh.th section, unless the goods were concealed by them, or they were parties or privies to the false invoices or entries; and in charging, on the contrary, that this is not the law; the burden of proof is not upon the United States, though the goods may not have been concealed, nor any probable cause to suspect their concealment at the time of their seizure, if there was probable cause to believe the duties upon them had not been paid or secured,
    3. That the learned judge erred in not instructing the jury, as requested by claimants’ counsel, that if the goods seized had •been fairly and bona fide purchased by the claimants, without any knowledge by them of their being liable to seizure on the. part of the United States, and were, at the time of the seizure, openly exposed by them for sale in their store, the United States cannot recover under the sixty-sixth or sixty-eighth section of said act of 1799, even though the goods had been fraudulently or falsely invoiced or entered, provided the claimants were in no way parties thereto; and in charging, on the contrary, that this is not the law, and that if the goods were fraudulently entered, it was no matter in. whose possession they were when seized ; the forfeiture took place when the fraud, if any, was committed, and the seller could convey no title to the purchaser.
    4. That .the learned judge erred in not instructing the jury, as requested by claimants’ counsel, that even though the goods in question had been invoiced at less than actual cost thereof at the place of exportation, with design to evade the duties thereupon, the United States had no title in the goods until they made their election either to recover the goods themselves or the value thereof; and that any rights in said goods acquired bona fide by third persons in the mean time are protected against the right of forfeiture under this section; and in charging, on the contrary, that this is not the law, and that the title of the United States vested at the time the fraud, if any, was committed, and the law authorized them to seize the goods, wherever they might be found.
    5. That the learned judge erred in not instructing the jury, as requested by claimants’ counsel, that the United States are not entitled to recover under the first and second counts of the information, unless the goods were unladen and delivered without permits : and in charging, on the contrary, that if the permits were obtained by fraud and improper means, they are of no effect, and a mere nullity, and that the United States were entitled to recover, if the goods were imported with a view to defraud the revenue.
    6. That the learned judge erred in not instructing the jury as requested by claimants’ counsel, that the burden of proof in this case, under the seventy-first section of the act of 1799, is upon the United States; and in charging, on the contrary, that the burden of proof was on the claimants.
    7. That the learned judge erred in not instructing the jury, as requested by claimants’ counsel, that the claimants were not bound to prove .the innocence of intent of the importers in making the invoices; that the claimants were not bound to prove the actual cost or value of the goods at the place of exportation ; that the claimants were not bound to prove innocence of intent of the importers in making their invoices, nor the actual cost at the place of exportation when they were appraised at the custom-house ; that the permits, and the delivery of the goods at the custom-house is a bar in all cases against forfeitures, except where the claimants are parties or privies to the fraud in obtaining them, or had a knowledge of the same, and that if the vendor is liable to the claimants of the goods seized for indemnity for the forfeiture of them, the seizure does not invalidate the sale, or impair the title of claimants thereto.
    8. .That the learned judge erred in charging the jury, that the United States have shown probable cause for this prosecution, and the claimants are bound to prove the innocence of intent of the importers in making the invoices. That they are bound to prove the actual cost or value of the goods at the place of exportation, even though they were appraised at the custom-house.
    9. That the learned judge erred in charging the jury, that the granting permits and delivery of these goods from the custom-house is not a legal bar against forfeiture in all cases, except where the claimants are parties or privies to the fraud in obtaining them, or had knowledge, of the same.
    10. That the learned judge erred in charging the jury, that, as to the thirteenth point, if the goods were fraudulently entered, no title passed to the claimants.
    11. The plaintiff in error further submits', that the case of •Wood v. United' States, 16 Peters, 342, in no way rules the present case ; that the claimant in that case was the same person who had made the false entry, he having entered them on his own oath as goods of which he was the actual owner. (See page 346.) It is therefore submitted, that the language of the court there applies only to a case where the party making the false entry is himself the claimant, and not to a case like the present, where the goods are claimed by a bona fide purchaser without notice. (See 16 Peters, 361 -365.)
    12. That the learned judge erred in admitting in evidence the acts and declarations of John Taylor, Jr., and Wm. Blackburne <fc Co., tending to show fraud in the entry or concealment of- other goods than those in the invoices of which the goods in question formed part.
    ■ In support of these points Mr. Fallon made the following observations.
    It is contended thaf, at common law, forfeitures have no relation back to time of the offence (except in cases of suicide, &c.). See 4 Black. Com. 421; Co. Litt. 390 b, 391 a; also authorities collected by Mr. Justice Story, in United States v. 1960 Bags of Coffee, 8 Cranch, 405, 408, 411, 412; and by Judge Winchester, in United States v. Grundy, 3 Cranch, 356, 363, in note. And though it may be admitted that' Congress may so provide; that the title shall, by reason of the forfeiture, relate so as to vest from the time of the offence committed, such is not the provision of the law under consideration'.
    . The sixty-sixth section of the act of 1799, (1 Stat. at Large, 677,) oh which alone this case can be sustained, provides, that, in case of a false invoice of goods, with design to evade the duties thereon, “ such goods, or the value thereof, to be recovered of the person making entry, shall be forfeited,” showing-that it was intended that government should make an election to take either goods or value from the person making entry. They certainly could not take both, and their right to either being precisely equal, neither becomes vested in them till election made. See opinion of the court, construing the fourth section of the act of 1792, (1 Stat. at Large, 289,) containing words precisely alike, ■“ the ship or its value, to be recovered of the person making the oath, shall be forfeited.” This right of election, it was held by the court, negatived the argument that Congress intended that the title should vest from time of of-fence committed, and protected a bond fide purchaser, who bought before election made. In this respect, this case is distinguished from the cases of United States v. 1960 Bags of Coffee, 8 Cranch, 396, where, in the absence of words giving a right of election, from the fifth section of the act of 1809, (2 Stat. at Large, 520,) the title was held to vest from time of offence committed. See p. 398, ibid. To the same effect is Gelston v. Hoyt, 3 Wheat. 311. In confirmation of these views, the court is referred to the 68th section of the act of 1799, (1 Stat. at Large, 678;) which imposes heavy penalties on parties to pretended sales ; a precaution hardly necessary, if it .were not that a bond fide sale without notice would defeat the recovery by the United States.
    It is submitted, that the language of the. court in Wood v. United States, 16 Peters, 365, where it is held that the forfeiture accrues upon making the fal.se invoice, in nq way conflicts with the present argument. In that case the claimant was the very party, who had made the false entry, see p. 342, (and indeed had been tried, for perjury, see 14 Peters,) and tbe argument made by him was, that, the moment the goods passed the custom-house, the goods were safe; the action of the officers of the government in passing the goods was, it was argued, equivalent to a judgment mantling the successful fraud, and that case'refused only to the bungling deceiver the protection of res adjudicata. It was in reference to such a case that the language in question was used ; but it is submitted that, even then, the opinion of the court is perfectly reconcilable with the present argument. All that the court decided was, that the “ forfeiture,” that is, the penalty or right to recover, accrued at once on commission of the offence; but whether that forfeiture should be of “ the goods, or of the value thereof,” must depend upon the exercise of their right of election, and until that right be exercised, intervening rights are protected.
    Also, it is submitted that the fiftieth section of the act of 1799, (1 Stat. at Large, 655,) was meant to provide against cases of smuggling in goods at places other than ports of entry, or without passing the custom-house, <fcc. Such was not this case. There was no evidence, Or pretence whatever, of fraud in obtaining the permits. The fraud was in making the false entries or invoices, and frauds of that character are specially, provided for by the subsequent sections of the act. It is therefore contended, that, under the evidence, and so far as respects this case, the learned judge erred, in charging that, if the permits were obtained by fraud, they are of no effect. ■
    A contrary construction of the act from what is now contended for induced the court erroneously, as is submitted, to permit evidence to be given of frauds on the revenue, committed by the original importers in other importations and in other ways, thus treating the claimant as a parti ceps criminum. It may be admitted that, in cases of conspiracy, fraud, &c., the quo animo may be shown by evidence of similar frauds committed by the same parties about the same time. But this rule has never been extended farther. To oblige an innocent purchaser to defend his vendor, or perhaps his more remote vendor, from every imputation of fraud that may be brought against him, though unconnected with the goods bought by him, and of which he could have had no knowledge, would be to impose a hardship so intolerable as to be revolting to every sense of justice ; and yet perhaps it is the necessary consequence of the construction now complained of.
    On the part of the United States, Mr. Johnson (Attorney-General) made the following points.
    1. That probable cause was shown for the prosecution, so as to throw the onus probandi of innocence on the claimant. Wood v. United States, 16 Pet. 342; Taylor v. Blackburn, 3 How. 197; Buckley v. United States, 4 How. 251; Clifton v. United States, Ibid. 242.
    2. That the acts and declarations of John Ta3dor, Jr., and William Blackburne & Co., showing fraud in the entries, invoices, and concealment of other goods than the goods in question, were evidence, as tending to show fraud in the entries, invoices, and concealment of the latter goods. Same, authorities above cited.
    3. That the goods not being invoiced, at the time of their entry, at the actual cost at the place of exportation, but below the said cost, and with the design to evade the duties thereon, the same were at once forfeited to the United States ; not only as against the fraudulent importer, but as against a purchaser without notice from such importer. Same authorities as are cited under the first point, and United States v. 1960 Bags of Coffee, 8 Cranch, 398; Roberts v. Witherhead, 5 Mod. 193; 12 Mod. 92 ;> 1 Salk. 223; Lockyer v. Ofñey, 1 Term Rep. 252 ; Wilkins v. Despard, 5 Term Rep. 112.
    4. That the United States were entitled to recover under the first and second counts of the information, although the goods were unladen and' delivered with permits, if these permits were obtained by fraud and improper means; and that they were entitled to recover if the goods were imported with a view to defraud the revenue. Bottomley v. United States, 1 Story, 146.
    5. That the instructions asked below, by the claimant, as to the construction of the fourth section of the act of 1830, and the fourteenth of that of 1832, and the proof which the United. States should offer to bring the present case within these sections, were erroneous; but if not, the judge below was right in saying, that, independent of'these acts, the United States were entitled to recover under the act of 1799. The same authorities as are cited under the first point.
    6. That, admitting that a purchaser for value and without notice could not be affected by a forfeiture under the sixty-sixth section of the act of 1799, yet the judgment below being on the first, second, and fourth counts, is correct, because the first plea of the claimant does not profess to answer the first and 'second counts; and the second plea, which is to all the counts, is no answer to the first and second counts, and being bad in part, is bad altogether. 7 Cranch, 339 ; 16 Peters, 357; 4 Howard, 250; 1 Chitty’s Plead. 546 ; Biggs v. Cox, 7 Dowl. & Ryl. 410.
   Mr. Justice WAYNE

delivered the opinion of the court.

We shall direct the reversal of the judgment of the Circuit Court in this case, on account of three erroneous instructions which were given to the jury. The prayers upon which those instructions were given are the fifth, sixth, and seventh.

They involve the question, as-to the time when the right of forfeiture attaches upon the entry of goods invoiced at less than their value at the place of exportation, under a statute which declares in such a case, that either the goods, or the value of them, shall be forfeited.

The instructions were' given by the learned judge in the court below, upon the supposition that they were required by the decision which this court made in "Wood’s case, 16 Peters, 342, particularly upon account of a sentence in the opinion at the three hundred and sixty-fifth page of the volume.

It was supposed to be a repetition in that case of what had been adjudged by the court, in the cases of The United States v. 1960 Bags of Coffee, and in The Brigantine Mars, 8 Cranch, 398, 417. Or that those cases did not permit instructions to be given to the jury as they were asked by the counsel for the claimants, and did permit the court to give the following: — That the title of the United States vested in the goods entered upon an undervalued invoice, at the time the fraud was committed, and the law authorized the United States to seize the goods wherever they might be found.

Neither of the cases mentioned authorizes such a conclusion. There is a sentence in Wood’s case, from which it may be made, unless it is carefully considered in connection with the last of the paragraph and with the first part of the next. That sentence is, — “ But under the sixty-sixth section no such allegations would be necessary or proper, as the forfeiture immediately attaches to every entry of goods falsely and fraudulently invoiced, without any reference whatever to the mode or the circumstances under or by which it was ascertained.”

The sixty-sixth section of the act to regulate the collection of duties upon imports and tonnage, (1 Statutes at Large, 677,) is, “ that if any goods, wares, or merchandise, of which entry shall have been made in the office of a-collector, shall not be invoiced according to the actual cost thereof at the place of exportation, with design to evade the duties thereupon, or any part thereof, all such goods, wares, and 'merchandise, or the value thereof, Jo be recovered from the person making the entry, shall be forfeited.”

It cannot be correctly said, when the declaration of forfeiture is disjunctively one or the other, of either the goods or their value, that the forfeiture upon the fraudulent entry necessarily and compulsively comprehends the first, to the exclusion of the value of the goods, which is also said may be a forfeiture ■— that is, that the goods are forfeited with a right in the government to assert a forfeiture of the value too, where the penalty for the fraud committed can only be One of them, and not both; or that when this court said in Wood’s case, speaking of the sixty-sixth section, that “forfeiture immediately attaches to every entry of goods falsely and fraudulently invoiced,” it was not intended to embrace either or both penalties, between which the United States might make its election for the punishment of the fraud.

That such is the meaning of the sentence already cited from Wood’s case is shown by the court’s recognition,..in the next, of the alternative forfeiture of the value of the goods, to be recovered of the person making, the false entry; and, also, by the use it makes of it, to show that the sixty-sixth section had not been repealed, because no such provision exists in the acts of 1830 or 1832, and no subsequent act covers all the cases provided for by it. The point in discussion in that part of the opinion was, whether the sixty-sixth section of the act of 1799, ch. 22, had been repealed, or whether it was in full force. The court, arguing against the repeal, used the alternative forfeiture in it of the value of the goods, and the want of the same in other acts, to show that it was still in full force; in that way satisfactorily establishing that the words, “ the forfeiture immediately attaches to every entry of goods falsely and fraudulently invoiced,” apply to the entry; not to make the goods a vested forfeiture in the United States, but to show that the right in the United States to either forfeiture is coexistent with the commission of the fraud.

But if the explanation given of that part of Wood’s case shall not bé as satisfactory to others as it is to ourselves, though we think it will be so to all .persons, we then say, that the point there in discussion, concerning the sixty-sixth section, is altogether different from that which we are here considering under the same section; and that any declaration concerning it used argumentatively, only to show a difference between it and other statutes in a point of pleading, as is the fact in that part of the opinion, cannot be an applicable authority, much less controlling, when the inquiry under the • same statute is its meaning in. respect to the attachment of penalties in it for its violation.

In Wood’s case, the point in discussion is, that the United States aré not entitled to recover under the third count in that information, because the sixty-sixth section of the act of Congress, passed' the 2d of March, 1799, entitled “an act to regulate the collection of duties on imports, &c.,” was not in force when the goods mentioned in the count were imported.

The point we. are now considering, arising under the same section, is, Are goods entered upon an invoice not according to the value thereof at the place of exportation, with design to evade the duties thereon or any part thereof, eo instanti upon the false entry a forfeiture to the United States, so as to avoid an intermediate sale of them to a bona fide purchaser, or one altogether ignorant of the fraud, and in no way connected with the perpetrator of it, except in buying the goods from him for a fair price ? The claimants in this case contended, in the trial in the Circuit Court, that neither under the sixty-sixth nor .the sixty-eighth section were the goods, eo instanti upon the commission of the fraud, forfeited to the United States, “ if the goods seized had been fairly and bond fide purchased by them, without any knowledge by them of their being liable to seizure, and were, at the time of the,seizure, openly exposed by them for sale in their stores, though the goods had been ifraudulently or falsely invoiced or entered,- provided the claimants were in no way parties thereto.” And, that though the goods in question had been invoiced at less than actual cost of them at the place of exportation, with design to evade the duties thereon, the United States had no title in the goods until they made their election, either to recover the goods themselves, or the value thereof. And that any rights in said goods acquired bond fide by third persons in the mqan time are protected against the right of forfeiture under the sixty-sixth section.

The claimants asked that such instructions should be given by the court to the jury. The court refused, but .did instruct the jury, “ that if the goods were fraudulently entered, it is no matter in whose possession they were when seized, or whether the United States had made an election between the penalties ; and that the forfeiture took place when the fraud, if any, was committed, and -the seller of the goods could convey no title to the purchaser.” This instruction is partly right and partly wrong; right in respect to the sixty-eighth section, as the penalty is the forfeiture of the goods without an alternative of their value; wrong as the instruction applies to the sixty-sixth section, the forfeiture under it being either the goods or their value.

In the first, the forfeiture is, the statutory transfer of right to the goods at the time tho offence is committed. If this was not so, the transgressor, against whom, of course, the penalty is directed, would often escape punishment, and triumph in the cleverness of his contrivance by which he has violated the law. The title of the United States to the goods forfeited is not consummated until after judicial condemnation; but the right to them relates backwards to the time the offence was committed, so as to avoid all intermediate sales of them between the commission of the offence and condemnation.

So this court said in the case of United States v. 1960 Bags of Coffee, 8 Cranch, 398. It was said again, in the case of The United States v. Brigantine Mars, 8 Cranch, 417. Declared again four years afterwards, in Gelston v. Hoyt, 3 Wheat. 311, in these words: — “ The forfeiture' must be deemed to attach at the moment the offence is committed,” so as to avoid all sales afterwards.

The differences in time when the transfer of right in forfeited goods takes place, under such provisions for forfeiture as are found in the sixty-sixth and sixty-eighth sections of the act of 1799, were fully considered and ruled by this court in United States v. Grundy and Thornburg, 3 Cranch, 337. It was afterwards noticed and assented to by the Attorney-General of the United States, in his argument in the case of the 1960 Bags of Coffee, 8 Cranch, 398; and has always been considered, from the time it was made, as the proper interpretation of a statute providing for a forfeiture for an offence, either of goods or their value. No case can be found in our. own or the English courts in conflict with hA

We must therefore say,, that the instructions given upon the. fifth and sixth prayers of the claimants were erroneous.

Our conclusion, also, is, that there was error in the instruction given by the court upon the seventh prayer of the claimants. The prayer is, “that the United States ate-not entitled to recover, under the first and second counts of the information, unless the goods were unladen and delivered without permits.” The difference between the first and second counts is, that the allegation in the first is, that the goods were brought into some. port or place in the United States unknown, unladen and delivered; and in the second, that they, were brought into the fort of New York, and unladen and delivered there; and in both, without any permit or special license from the collector, or any other competent officer of the customs.

.'The response of .the court to the prayer is, — “If. the permits were obtained by fraud and improper means, they were of no effect, and a. mere nullity. The United States are entitled to recover, if the goods were imported with the view to defraud the revenue.”

' ;The direct and proper response-to that prayer ought to have been, that, as the first and second counts were framed upon the fiftieth section .of the act of 1799, by which a 'fine is imposed upon persons unlading and delivering goods without a permit, if the jury should 'find that the goods in question had been. so unladen by the claimants, then they were liable to the penalty provided in that section; or if the goods were unladen by them with a permit, the jury could not find a verdict against the claimants upon the first and second counts.

The prayer does not involve, either in- terms or inferentially from them, the legal effect or sufficiency of a permit obtained by improper means, or fraud upon the unlading of goods under it; or that the permit under which the goods in question may have been landed had been fraudulently obtained, and the goods landed under it by the claimants. When, then, the jury were told, that a permit obtained by fraud or improper means was of no effect and a nullity, it was virtually saying to them, that a verdict might be returned upon the first and second counts against the claimants, and that they were liable to the penalties of the act for unlading goods without a permit, without saying, if they thought that there was evidence enough to prove the fact against them. And the court, by adding, that “the United States are entitled to recover, if the goods were imported with the view to defraud the revenue,” stated a proposition out of the case; for there was no such count in the information, or- any statute of the United States, for the punishment of frauds in the importation of goods, upon which a count could have been framed in the words of the instruction. The instruction was calculated to mislead the jury into a conclusion, that the suit was against the claimants for a meditated fraud in the importation of the goods in question, which had rendered them liable to be forfeited.

It is not necessary to notice the other prayers asked, refused, and given in this case. It was argued before this court only upon the three already stated, the answers to which we have said-are erroneous.

We shall; therefore, remand the cause, with an order for the reversal of the judgment, and for a venire de novo, that further proceedings may be had thereon in conformity with this-opinion.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Pennsylvania, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court affirming the judgment of the District Court in this cause be, and the same is hereby, reversed, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to enter a disaffirmance of the judgment of the District Court, and to remand this cause to the said District Court, with directions to that court to award a venire facias de novo, and for further proceedings to be had therein in conformity to the opinion of this court.


author: Mr. Chief Justice TANEY

text:
    Edmund T. H. Gibson, Plaintiff in error, v. Bradford B. Stevens, Defendant.
    Where personal property is, from its character or situation at the time of the. sale, incapable of actual delivery, the delivery of the bill of sale, or other evidence of title, is sufficient to transfer the property and possession to the vendee.
    Where articles of commerce were purchased in the State of Indiana, and the vendors, in whose warehouses they were lying, gave a written memorandum of the salé, with a receipt for the money, and an engagement to deliver them on board of canal-boats soon after the opening of canal navigation, these documents transferred the property and the possession of the articles to the purchasers.
    These documents, being indorsed and delivered to a merchant in New York, in consideration of advances of money in the usual course of trade, transferred to him the legal title and constructive possession of the property.
    Therefore, an attachment subsequently issued, at the instance of a creditor of the original purchasers, which was levied upon the property in question, could not be maintained..
    This court will judicially recognize this branch of trade. It has existed long enough to assume a regular form of dealing, and its ordinary course and usages are now publicly known and understood.
    The New York merchant stood in the position of an actual purchaser to the extent of his advances, and not in that of a factor who had made advances upon goods in his possession.

      A guarantee by the first sellers that the articles should pass inspection did not change the original sale into an executory contract. It was nothing more than the usual warranty of the soundness of the goods sold.
    This case was 'brought up, by writ of error, from the Circuit Court of the United States for the- District of Indiana.
    It was an action of replevin brought by Gibson, a citizen of New York, against Stevens, the sheriff of Allen County, Indiana, who had in his custody sundry articles of property which he had taken by virtue of a writ of foreign attachment, issued under the State laws of Indiana.
    The facts in the case were agreed upon by the counsel in the Circuit Court as follows.
    Be it remembered, that at the May term of said court, A. D. 1844, the above cause was submitted to the decision of the court, without the intervention of a jury, upon the following agreed facts, to wit: —
    The parties mutually agree that the following are the facts in this case: — That McGLueen & McKay, citizens of the city of Detroit, Slate of Michigan, about the 20th of March, 1844, by false pretences, fraudulently procured the branch of the State Bank of Indiana, at Indianapolis, to loan to them the sum of about eleven thousand dollars. The money thus loaned consisted of notes of the Indianapolis branch of said State Bank of Indiana, payable to bearer, and transferable by delivery. With part of the money thus obtained, McQueen & McKay purchased of Hanna, Hamilton, & Co. three hundred and fifty barrels of mess pork, for the sum of $ 2,908.50, and at the same time paid to the said Hanna, Hamilton, <fc Co. the said purchase-money; and thereupon the said Hanna, Hamilton, & Co. executed and delivered to the said McQueen & McKay the memorandum of said purchase, receipt, and guarantee thereto appended; which are herewith filed and marked A, and made a part of this agreement, and are in the words and figures following, to wit: —

      11 Fort Wayne, April 4, 1844.
    “ Messrs. McQueen & McKay,
    “ Bought of Hanna, Hamilton, & Co.'
    “350 barrels mess pork, to be delivered on board of canal-boats soon after the opening of canal navigation, at $ 8.31 $ 2,908.50
    “ Received payment in full,
    “ Hanna, Hamilton, & Co.
    “ We guarantee the inspection of the above pork at Toledo, and the delivery on board of canal-boats at 'this place, soon after the opening of canal navigation.
    “Hanna, Hamilton, & Co.

      “ Fort Wayne, April 4, 1844.”
    The said barrels of pork were, at time of said sale to McQueen &. McKay, lying in the warehouse of said Hanna,, Hamilton, & Co., in the town of Fort Wayne, in the State of Indiana, about twenty feet from the Wabash and Erie Canal, marked'and branded “Mess Pork,” together with a large number of other barrels of pork, marked and branded “Prime Pork,” and “Clear Pork.”
    Said three hundred and fifty barrels being all the mess pork in said warehouse at that time, or at any other time since, and all the barrels marked “ Mess Pork,” but were not seen by McQueen & McKay. Said barrels of prime, clear, and mess pork laid in said warehouse promiscuously, and so remained up to, and at, the time of the assignment of said writing marked’ A; but after the assignment, and before the levying the attachment- hereinafter mentioned, said Hanna, Hamilton, & Co. had shipped off all of the said barrels of pork marked and branded “Prime Pork” and “Clear Pork.”
    Said McQueen & McKay, at the same time, purchased of D. &• J. A. F. Nichols, of Fort Wayne', Indiana, two hundred barrels of superfine flour, for the sum of $ 712.50, and at the same time paid the said D. &> J. A. F. Nichols the said purchase-money ; and thereupon said D. & J. A. F. Nichols executed and delivered to said McQueen & McKay a memorandum of said purchase, receipt, and guarantee, in the words and figures following, to wit: —
    “ Fort Wayne, April Ath, 1844.
    “ Messrs. McQueen & McKay,
    “ Bought of D. & J. A. F. Nichols.
    “ Two hundred barrels of superfine flour, at $ 3.56J, $ 712.50
    “ Received, Fort Wayne, April 4th, 1844, payment in full..
    “D. & J. A. F. Nichols. -
    “Received the above flour in store, at Fort Wayne, April 4th, 1844, which we agree to deliver on board of canal-boats here, soon after the opening of the navigation, subject to the order of McQueen & McKay.
    “ D. & J. A. F. Nichols.
    “ We guarantee the inspection of the above flour in' New York as superfine flour.
    D. & J. A. F. Nichols.”
    Which are herewith filed and marked B, and are part of this agreement. Said barrels of flour were, at the time of said sale, lying in the warehouse-of said D. & J. A. F. Nichols, in the town of Fort Wayne, Indiana, on-the bank of the Wabash and Erie Canal, and there remained until they were seized and taken under the attachment hereinafter mentioned. Said purchases were both made in the town of Fort Wayne, in the county of Allen, in the said State of Indiana, on the 4th day .of April,’ 1844.
    On the 17th day of April, 1844, said McQueen & McKay presented the said memorandums of purchase, receipts, and guarantees thereto appended, as above set forth, and marked A and B, to the said Gibson, in the city of New York, and re-quested of said Gibson an advancement upon the flour and pork therein, mentioned; whereupon the said Gibson did advance to the said McQueen & McKay, on the faith of said flour and pork, and the evidences of-title thereto, the sum of $2,7-87.50, and took from said McQueen & McKay an ai-Agnment of said memorandums of purchase, receipts, and guarantees, respectively, indorsed on the back of each in the words and. figures following, to wit: —
    “ Deliver the within two hundred barrels of flour to E.- T. H. Gibson, or order.
    “ McQueen & McKay.”
    “ New York, April 17, 1844.
    “ Deliver the within 350 barrels of pork to E. T. H. Gibson, or order.
    “ McQueen & McKay.”
    Which are also part of this agreement.
    Said McQueen & McKay, at the same time, delivered to the said Gibson the original memorandums of purchase, receipts, and guarantees above set forth, and marked A and B; in whose possession they now remain.
    At the same time McQueen & McKay wrote, signed, and delivered to said Gibson, the letter which is herewith filed, marked C, and made a part of this agreement; and is in the words and figures following, to wit: —
    “ New York, 17th April, 1844.
    “ Messrs. Ludlow & Babcock, Toledo: —
    “ Gentlemen, — We have this day received an advance from E. T. H. Gibson, Esq., on the following lots of pork, which you will have the goodness to deliver to his order, and to comply with his instructions relative to the shipment, to wit: —
    meSS
    ook 225 do. prime do.
    £ y

    from warehouse of Walker, Roger, & Go. & 5
    11 do. mess do. from warehouse of Benbridge <fc Mix: .
    300 do. do. do. do. do. Hamilton & Williams.,
    350 do. do. do. do. do. Hanna, Hamilton, &, Co.
    200 do. flour, from warehouse of D. & J. A. F. Nichols.
    “Respectfully, Gentlemen, your obedient servants.
    “McQueen & McKay.”
    On the 18th day of April, 1844, Gibson inclosed the letter above referred to in another letter written by himself, directed to Mott & Go., at Toledo, Ohio, and mailed the same on the said 18th day of April, 1844, in the post-office in the city.of New York; which said letter, with the inclosure,-said Mott & Co. received by due course of mail, and handed said inclosed letter, as requested by said Gibson, to Ludlow &. Babcock, at Toledo, Ohio.
    Said Gibson also, on the said 18th day of April, 1844, mailed, in the post-office in the eity of New York, a letter written by himself, and directed to said Ludlow & Babcock, at Toledo, Ohio, which said Ludlow & Babcock received by due course of mail; which letter is herewith filed, marked D, and made a part of this agreement; and is in the words and figures following, to wit: —
    “ New York, April 17, 1844.

      “ Messrs. Ludlow & Babcock, Toledo, Ohio: —
    “ Gentlemen, — I have this day made Mcdueen & McKay, of Detroit, an advance on twelve hundred and fifty-one barrels of pork, and two hundred barrels of flour, which is stored at different points on the line of the Wabash Canal, and which they state is to be shipped to your care, and held by you at Toledo, until you receive instructions from them respecting it. They have given me an order on you for it, which I have sent to Mott & Co. I wish you to ship the pork and flour to me immediately on its arrival at Toledo, at the lowest possible rates of freight, and send me a bill of lading of the same. There is one lot of three hundred barrels of pork in Hamilton & Williams’s warehouse, on which there is due from Mcdueen & McKay, on its arrival at your place, $ 550.00. This amount you may draw on me for, so soon as 1 receive bill of lading of the pork. Let me hear from you by return mail respecting it.

      “ I remain truly and respectfully yours.
    “E.'T. H. Gibson.”
    At the time of the assignment of said memorandums of purchases, receipts, and guarantees, said Gibson-was a commission merchant in said city of New York, in the State of New York, and it was usual and- customary for commission merchants, residing and doing business in the city of New York, to make advances on Western produce, upon the assignment of the proper evidences of title thereto.
    On the 23d of April, 1844, said Gibson, having on that day-learned that Mcdueen & McKay had suffered some of théir bills to be protested for' non-payment, despatched one William Hoyt to the town of Fort Wayne, aforesaid, to see to the shipping of said pork and flour; and the said Hoyt arrived at said town of Fort Wayne on the 29th day of April, 1844, for that purpose, having in his possession the said writings iparked A and B.
    At the time, of the assignment of said writings marked A and B, the said Wabash and Erie Canal was navigable at and from the said town of Fort Wayne to the said town of Toledo.
    On the 27th day of April. 1344, a writ of attachment issued from the Allen Circuit Court, in the State of Indiana, in due form of law, at the instance and in the name of the State Bank of Indiana, against the goods and chattels, lands and tenements, of the said McQueen & McKay (William McQueen and James McKay) ; which said writ of attachment, and all the proceedings in and about the issuing of the same, are admitted to have been regular; and the production of the same, and of the record thereof, is hereby waived.
    This said writ was directed to the defendant in this suit, who then was, and still is, sheriff of said county of Allen, and came to his possession as such sheriff on the said 27th day of April, 1844; on which said 27th day of April, 1844, the sheriff aforesaid, lay virtue of said writ of attachment, levied upon, seized, and took into his possession the said pork and flour described in said writings, marked A and B, the return day of which said writ has not yet elapsed. And it is also agreed, that the proceedings of the said sheriff in executing the writ of attachment were, in all respects, regular. (It is not, however, admitted by the plaintiff, that the property' levied on was, at the time levied on, or at any time since, the property of the said McQueen & McKay; or that McQueen & McKay had an attachable interest therein.) And that the defendant shall have the full benefit of all the proceedings in the ,said attachment, in the same manner as though the record thereof was produced before this court. And it is further agreed, that the said sheriff kept and retained the possession of the said flour and pork, so levied on by said writ of attachment, until the same was replevied out of his possession, by virtue of the writ of replevin in this case. The said writ of attachment was issued and sued out for the purpose of coercing the payment of the said money,-obtained by the said McQueen <fc McKay, as above stated.
    It is further admitted by the parties, that the said pork and flour are of the value mentioned in the affidavit of William Hoyt, now on'file in this court, on which said writ of replevin was issued.
    The said Ludlow & Babcock were, on the 17th day of April, 1844,' the forwarding merchants of the said McQueen & McKay, at Toledo, Ohio, one hundred and four miles from Fort Wayne; and .that Mott & Co. were, on the same day, the forwarding merchants of said Gibson at same place, Toledo.
    It was understood between the said Gibson and the said McQueen & McKay, at the time of said assignment of said writings marked A and B, that the said Gibson should sell the said pork and flour, and after retaining his said advancement and his legal commission, and interest and outlays, pay the remainder of the proceeds of said pork and floiir to said .McQueen & McKay, according to the usage and custom of commission merchants. The pork and flour mentioned in said writings, marked A and B, and that levied upon by virtue of said attachment, and that replevied by virtue of said writ of replevin, in this cause issued, and purchased by McQueen & McKay with the money obtained from said bank, as aforesaid, are the same pork and flour, and not other or different. The said levy, seizure, or detention of said pork and flour happened at and within the county of Allen, in the State of Indiana; a legal demand was made before the commencement of this suit, and after the said levy, upon the defendant, by said Hoyt, as the agent of said Gibson, for the said pork and flour, and the said defendant refused to surrender the same. The said Gibson was, at the time of the commencement of this suit, and still is, a citizen of the State of New York, and the defendant a citizen of the State of Indiana.
    The said advancement, so made by said Gibson, corresponds with the usual advancing rates of commission merchants in the said city of New York, at the time of said advancement.
    The said writ of attachment was levied on the said property at the instance of the said branch of said' State Bank of Indiana ; and it was known to the State Bank of Indiana at the' time of, and before, the levy of said writ of attachment, that the said loan had been procured from her said branch at Indianapolis fraudulently, by said McQueen & McKay, and that the said McQueen & McKay had invested the- said money, so obtained, in the purchase of said pork and flour, and that said attachment is still pending; and that the original bills on which said money was obtained fell due after the levy under said attachment; and that none of said bills, on which said money Avas obtained, or any part thereof, have ever been paid, but were at maturity protested for non-payment.
    It is also admitted, if the court should consider the circumstance legitimate or material, which the defendant denies, that in 1843 the said McQueen & McKay, and said Gibson, had a similar transaction in New York, in Avhich the' said McQueen & McKay acted with integrity, but with Avhich the bank or the other parties had no connection.
    Upon this case stated, the Circuit Court gave judgment for the defendant in replevin. The counsel for the plaintiff took an exception, and brought the case up to this court.
    It was argued by Mr. Romeyn and Mr. Wood, for the plaintiff in error, and by Mr. Bright (in a printed argument), for the defendant in error.

      Points for the Plaintiff.

    I.The attachment was prematurely brought. Because, —
    1. The loan of its bills by the bank to McGlueen & McKay was pn an express agreement l for credit; which agreement, if procured by fraud, was not Void, but voidable, by the bank at its option. Chitty on Cont. 678; Story on Sales, §§ 420, 447, and cases cited; Galloway v. Holmes, 1 Doug. (Mich.) 336; Rowley v. Bigelow, 12 Pick. 307.
    2. There being an express contract for a loan on time, if the bank elected to consider it fraudulent and to sue immediately, the action should have been in tort. Story on Sales, 432, 434, 442, 446, and cases cited there; Jones v. Hoar, 5 Pick. 285; Willett v. Willett, 3 Watts, 277; Cary v. Curtis, 3 Howard, 247, 248.
    3. The remedy by foreign attachment in Indiana is confined to cases of debts due on contract and shown by affidavit; and the institution of such a suit was an affirmance of the contract of loan ; and, inasmuch as the stipulated term of credit had not expired, the action was prematurely brought. Code of Indiana of 1843, pp. 762, 763, 772, 773; Lindon v. Hooper, Cowp. 418; Ferguson v. Carrington, 3 Carr. & Payne, 457, at Nisi Prius; same case in Bench, 9 Barn. & Cres. 59. This case is cited as law by Starkie, 2 Ev. 55; 1 Chitty on PL 157; 1 Com. on Cont. 221; Dutton v. Solomonson, 3 Bos. & Pul. 585; 15 Mass. 80, note a; Galloway v. Holmes, 1 Doug. (Mich.) 334.
    In the present case, the question is not whether the bank had. a right to disaffirm; but whether, by bringing this action, she did not in fact affirm the express contract.
    The authorities cited show the general doctrine of the common law to be, that promises in law exist only in the absence of promises in- fact; that where there is an express contract, suing in assumpsit is an affirmance of it; that in those cases in which it has been held that assumpsit would lie immediately on discovery of the fraud, there was a debt due, in prcesenti, either by an express precedent contract, or by the absence of any agreement for credit; or the contract was incapable of confirmation and absolutely void, through illegality, or as being contrary to public policy.
    It is further contended, that the attachment of the pork and flour, as the property of McGlueen & McKay, was an affirmance of the contract with them. Campbell v. Fleming, 1 Adolph. & Ell. 40; Selway v. Fogg, 5 Mees. & Weis. 86; Thompson v. Morris, 2 Murphy, 248; Dingley v. Robinson, 5 Greenl. 127; Hanna v. Mills, 21 Wend. 90; Ibid. 175.
    A party cannot claim in repugnant rights, and is concluded by the form of his action. Smith v. Hodson, 4 Term Rep. 217.
    4. The retention of the bills of exchange, given by McQueen & McKay, as well as the form of the action, was an affirmance of the contract of loan. Tobey v. Barber, 5 Johns. 72; Dayton'®. Trull, 23 Wend. 346-; Thomas v. Todd, 6 Hill, 341; Masson v. Bovet, 1 Denio., 74; Story on Sales, 4 427.
    II. The bank, under her attachment, had no right, as against Gibson, to claim the pork and flour as the specific proceeds of her bills, on the ground of the alleged fraud of McQueen & McKay in procuring them. Because, —
    1. She attached it as the property of McQueen & McKay, and for the benefit of their general creditors. If trover had. been brought, the alleged fraud would have been disputed.
    2. Having voluntarily parted with the possession and ostensible ownership of her bills, she cannot claim them or their avails from a bona fide purchaser. Parker v. Patrick, 5 Term Rep. 175; Mowrey v. Walsh, 8 Cowen, 238; Root v. French, 13 Wend. 572; Hoffman v. Noble, 6 Metcalf, 68; Story on Sales, <§> 200, and cases cited there.
    III. The flour in the custody of Hanna, Hamilton, & Co., and the pork in the hands of D. & J. A. F. Nichols, were the legal property of McQueen & McKay, at the time of the transfer thereof by them to Gibson, the plaintiff, and said McQueen & McKay'held, at the time of the attachment, the beneficial interest only in the residue of the proceeds of sale thereof, to be made by Gibson, when the property reached him, after satisfying his advance thereon, with commissions and all other charges.
    IV. McQueen & McKay acquired a vested legal title in said pork and flour, by their purchases. The bills of sale being their muniments of title, also a constructive possession thereof, the property remaining in the custody of the respective vendors, as their bailees. Because; —
    1. The sale was a perfect vested sale, and not an executory agreement to sell at a future period. Martindale v. Smith, 1 Adolph. & Ell. (N. S.) 389 (41 Cond. Com. Law, 595).
    2. The bills of sale purport to pass a present vested interest, and they were delivered to McQueen & McKay. The payment of the purchase-money bound the bargain, and passed at once the legal title to them. Barret v, Goddard, 3 Mason, 110.
    3. Whenever there is a present vested sale, valid in law, and the property sold is left with the vendor, he holds it in custody as bailee for the purchaser. Elmore v. Stone, 1 Taunton, 157; Bailey v. Ogdens, 3 Johns. 416; Dixon v. Yates, 5 Barn. & Adolph. 314.

      4. The pork and flour were sufficiently identified and distinguishable from all other property, there being no other pork in the warehouse, and the flour being marked. Barret v. Goddard, 3 Mason, 107; Pleasants v. Pendleton, 6 Rand. 473; Swan-wick v. Sothern, 9 Adolph. &, Ell. 895.
    5. This construction is confirmed by the condition of the property at the time, and the general, well-established usage of trade in regard to it; which usage is to leave such produce in the warehouse till the opening of navigation, the warehouseman being in the mean time the bailee of the owner; and for the owner to get an advance thereon from the Eastern merchant, and to transfer the same to secure the advance: he to sell the same on commission.
    6. The delivery on board of canal-boats provided for, was a delivery as bailee for the purpose of transmission. The guarantee of inspection at Toledo was a warranty of quality, to be tested after sale, and it was not preliminary to the sale.
    Y. McQueen & McKay passed the entire legal title in said produce to the plaintiff, together with the beneficial interest, to the extent of his advance thereon, and gave him the constructive possession. Because, —■
    1. The condition of said produce was such as not to admit of actual delivery at the time, and it was in accordance with the course of business and the usage of trade to leave it with the warehouseman in the W est.
    2. The delivery order, according to the weight of authority, was sufficient of itself to pass the title to Gibson, on making the advance, before its presentment and acceptance.
    3. But if not, the delivery to Gibson of the muniments of title, viz. the bills of sale, was sufficient for that purpose, especially when accompanied with a delivery order. Hollingsworth v. Napier, 3 Caines, 182; Wilkes v. Ferris, 5 Johns. 338 ; Bailey v. Johnson, 9 Cowen, 115; Lucas v. Dorrien, 7 Taunt. 279; Greaves v. Hepke, 2 Barn. <fc Aid. 131; Pleasants v. Pendleton, 6 Rand. 473; Ricker v. Cross, 5 N. Hamp. 571; In-graham v. Wheeler, 6 Conn. 277; Atkinson v. MalingJ 2 Term Rep. 465; Brown v. -Heathcote, 1 Atk. 162; Gardner v. How-land, 2 Pick. 599; Story on Sales, § 311: 2 Kent, 500.
    4. It was sufficient for the plaintiff to give notice of his purchases in a reasonable time to the respective bailees of the property, so as to exempt himself from the imputation of laches : which notice was given in this case. Putnam v. Dutch, 8 Mass. 290; Meeker v. Wilson, 1 Gall, 419; 5 N. Hamp. 571; 6 Conn. 277.
    5. The effect of the whole was to give the plaintiff the legal title in the produce, and not a mere lien thereon, or a mere pledge of the property; and this is the effect whether the transfer be governed by the law of New York (which is properly applicable to it), or by the law of Indiana. Story on Conflict of Laws, §<§> 316 to 325; Black v.- Zacharie, 3 Howard, 512.
    VI. If Gibson be considered as not having the' entire legal title, but as a pledgee to the amount of his advances, he is pro tanto to be considered and protected as a purchaser. Story on Bailments, <§. 297; Story on Agency, <$361; Lickbarrow v. Mason, 2 Term Rep. 63; Root v. French, 13 Wend. 572; Holbrook v, Wight, 24 Wend. 169; Hoffman v. Noble, 6 Mete. 69 ; Story on Agency, <§> 111.
    VII. The legal title of the plaintiff in said produce is not superseded or divested by the levy of the attachment on the property. Because, —
    1. The bank was not a bond fide purchaser. The attachment amounted only to an assignment in invitum by operation of law, and for the benefit of the creditors at large, as well as for the attaching creditor. ' Indiana Code, 1843, pp. 762 —775; Lempriere v. Pasley, 2 Term Rep. 485; 1 Atk. 160; Nathan v. Giles, 5 Taunton, 558; United States v. Vaughan, 3 Bin. 394; Ingraham v. Wheeler, 6 Conn. 277; Ricker v. Cross,
    5 N. Hamp. 571; Portland Bank v. Stacey, 4 Mass. 663; Putnam v. Dutch, 8 Mass. 287; Badlam v. Tucker, 1 Pick. 389 ; Gardner v. Howland, 2 Pick. 604;. Arnold v. Brown, 24 Pick. 95; note to Lanfear v. Sumner, 17 Mass. 114.
    2. If the bank had been a bond fide purchaser of said produce of Mcdueen & McKay, instead of being attaching creditors, such purchase would not divest the plaintiff of his title, which is a legal title, with a constructive possession, fairly acquired and unaccompanied with any laches in notifying the bailee thereof, or in reducing the same to actual possession, according to the course of trade; such a legal title, being prior in time, is prior in right. See cases cited under last proposition; also Caldwell v. Ball, 1 Term Rep. 205; Tuxworth v. Moore. 9 Pick. 348; Joy v. Sears, 9 Pick. 4; Turner v. Coolidge, 2 Mete. 351;
    3 Mason, 114; Meeker v. Wilson, 1 Gall. 422; Phillemore v. Barry, 1 Camp; 563.
    The cases do not turn on the question of notice to an attaching creditor, but whether there has been such a delay in taking actual possession as to furnish evidence of' fraud.
    3. If the attachment had the character of a purchase, it would not be bona fide and without notice, within the reason of the rule, because Mcdueen & McKay were out of possession, actual or constructive, which put the purchaser upon inquiry, and amounted to constructive notice of the prior legal transfer to the plaintiff. Lucas v. Dorrien, 7 Taunt. 278; 1 Gall. 422.
    4. The bank, therefore, under the circumstances, took only the interest of McQueen & McKay then existing, and subject to all equitable, ás well as legal, interests then outstanding against it.
    ■ Till. The only interest of McQueen & McKay was the equitable beneficial interest in the residue of the proceeds of the produce when sold by the plaintiff on the consignment to him, after satisfying thereout his advances and charges on sales, which alone .was attachable, and which did not warrant the officer in taking the property. Story on Bailments, <§> 353, and cases cited; .Badiana v. Tucker, 1 Pick. 399; Indiana Code, <§> 383, p. 744, and <§> 39, p. 770; Evans v. Darlington, 5 Blackf.'320.
    IX. The rights of the plaintiff are not weakened by his having purchased ihe property out of the State of Indiana, to be sent and' sold in New York, according to the course of trade. Blake v. Williams, 6 Pick. 307-314; Black v. Zacharie, 3 Howard, 514.
    X. If there had been any danger that the plaintiff would have absconded with the property, to the injury of the equitable lien of the bank and other creditors, acquired by the attachment, (which is not shown or pretended,) their remedy would then have been in equity only.
    IX. The warehouse receipt accompanying the transfer to Gibson was equivalent, under the usage of trade, to a bill of lading, and its transfer divested all outstanding title unknown to Gibson, whether legal or equitable. Because, —
    1. Such instruments are assignable. Indiana Code, p. 576; Laws of New York of 1830, p. 203, § 5; 2 Rev.- Stat. p. 60.
    2. The case states that it was usual and customary to make ádvanees on the assignment of proper evidences of title. Noble v. Kennoway, 1 Doug. 512; Zwinger v. Samuda, 7 Taunt. 265; Lucas v. Dorrien, Ibid. 288; Barton v. Baddington, 1 Car. 6 Payne, 207; Keyser v. Suse, Gow, 58.
    The argument filed on behalf of the defendant in error was an elaborate support of the following points: —
    1. If Gibson’s claim be in the nature of a lien, he cannot recover, unless.he, or his agent for the purpose expressly authorized, had the actual possession of the pork and flour before the attachment was levied. Under the circumstances of this case, a constructive possession cannot be conferred, for the following reasons: — 1. Because the bills of parcels, &c., in this cause, do not amount to warehouse receipts; for instance, the memorandum of Hanna, Hamilton, & Co. is a mere receipted bill of parcels, and a guarantee of the inspection of the pork at Toledo; it does not even acknowledge the pork to be in storel Should the pork and flour not pass inspection, MeQueen & McKay Would not be bound to accept them. The bills of parcels, with, their indorsements, &c., amount to nothing more than mere orders to deliver the pork and flour to Gibson; and until the Nicholses, and Hanna, Hamilton, & Co., were presented with such orders, and they had accepted the same, and assented to hold the pork and flour for Gibson, as his agents, his lien could not attach; and the attachment having been sued out, and levied on the pork and flour in question before they received orders in favor of Gibson, the attaching lien of the State Bank must prevail. 2. Although the memoranda may be considered as warehouse receipts, y^et, there being no legislative enactment or usage in New York making the transfer and delivery thereof to confer a constructive possession of the pork and flour, their transfer and delivery to Gibson cannot have that effect. 3. Althoiigh, by the laws of New York, these memoranda might confer a constructive possession on Gibson, yet, as the pork and flour were, at the time of the delivery of those memoranda to Gibson, at Fort Wayne, in Indiana, the transaction must be governed try the laws of Indiana. In Indiana we have no law, or usage, giving such force to warehouse receipts.
    2. Although Gibson should be regarded as an absolute purchaser, yet, as the attachment wras levied upon the pork and flour before he or.any agent of his had actual possession of them, Gibson cannot recover. A fortiori if Gibson’s claim be only a lien.
    3. If the pork and flour be regarded as a security to Gibson, for the repayment of the advance, nevertheless, as neither Gibson nor any agent of his had the actual possession of the pork and flour before they were attached, nor had the instruments by which his lien on the pork and flour was created been recorded in Allen county, Indiana, (the place where the pork and flour were,) within ten days, according to the Rev. Stat. of Indiana, 1843, p. 590, sec. 10, such assignment to Gibson is void as to the State Bank.
    4. Whether Gibson’s right be regarded as a lien on, or a purchase of, the pork and flour, still, as neither Gibson nor any agent of his, had the actual possession thereof, before the attachment was levied, Gibson cannot recover.
    5. If Gibson be regarded a “ deemed pro tanto purchaser,” Mcdueen & McKay must be regarded as owners of the residue. This condition of things necessarily makes Gibson and McQueen & McKay tenants in common of the pork .and flour. 'If this be true, (which we regard as unquestionable, if Gibson be a “pro tanto purchaser,”) the interest of McQueen & McKay in the pork and flour is attachable, and the officer attaching can, by virtue of the attachment, take the whole of the pork and flour, even out of the actual possession of Gibson, and deliver it over to-the purchaser, and Gibson cannot replevy them from the officer or the purchaser under the attachment.
    6. If Gibson’s right be only a lien, although such lien may have attached oh the pork and flour before the attachment of the State Bank was levied thereon, nevertheless the interest of McQueen & McKay therein is attachable.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

This case is one of much interest, and has been very fully argued. There is, however, but a single question in it, and that is, whether the property in dispute was transferred to the plaintiff in error, and vested in him, by the indorsement and delivery of the warehouse documents in the manner stated in the record.

The fact that McQueen & McKay by fraudulent means obtained the’money from the bank, with which they purchased the pork and flour, is not material in the decision of this question. The bank in these proceedings does not claim the property as its own, upon the ground that it was purchased with money fraudulently obtained from it. If it had intended to assert its title as owner, it should have proceeded by some appropriate action fo recover the property itself, or the value of it in damages. But the bank presents itself in the character of a creditor, seeking to collect its debt by an attachment against the property of its debtor. And the claims of both parties, plaintiff and defendant, rest upon the admission that-the pork and flour were the property of McQueen & McKay, and had been left by them in the custody of the warehousemen as their bailees.

We are not, therefore, called upon to decide whether the owner of money fraudulently obtained from him can follow the proceeds in the hands of a bona fide purchaser without notice, and in the usual course of trade. As this question is not in the case, we forbear to examine it, although it was discussed in the argument at the bar. We must not, however, be understood as intimating that, if this point had arisen, the judgment of the court would have been different from that which we are. about to give.

The case as it comes before us in substance is this. The pork and flour were purchased by McQueen &, McKay, at Fort Wayne, in the State of Indiana,' on the 4th of April, 1844. The articles were in the warehouses of the respective vendors at the time of sale, and the purchasers took from each of them a written memorandum of the sale, with a receipt for the money, and an engagement to deliver them on board of canal-boats soon after the opening of canal navigation. There was also a written guarantee from the respective vendors, that the articles sold should pass inspection. By the order of McQueen & McKay they were to be sent by canal-boats to Ludlow & Babcock, their agents at Toledo, in the State of Ohio, to be held by them until they received orders from McQueen dr- McKay.

The documents executed by the warehousemen, herein before mentioned,.transferred the property and the possession of the pork and flour to McQueen & McKay, and the vendors from that time held it for them, and as their bailees.

Being thus in possession, McQueen & McKay afterwards, on the 17th of April, in the city of New York, in consideration of the advance of money mentioned in the statement of the case, delivered tp Gibson, the plaintiff in error, the evidences of title which they had received from the vendors, indorsing thereon an order upon them to deliver the property to Gibson. They at the same time delivered to Gibson a letter to Ludlow & Babcock, their agents at Toledo, stating that they had received an advance from Gibson upon this property, and directing them to deliver it to him, and to comply with his orders.

Gibson was a commission merchant residing in New York, and it is admitted that this transaction with McQueen &, McKay was in the usual course of his business. On the 27ik of April, ten days after this transfer, the property was seized by the defendant in error, as sheriff, under an attachment issued on the same day at the suit of the bank, to obtain satisfaction for the debt due to it from McQueen & McKay. At the time of the attachment, the pork and flour still remained in the warehouses at Fort W&yae, and neither the warehousemen nor the attaching creditor had notice of the transfer to Gibson. The agent despatched by him arrived two days afterwards, and claimed the property. The sheriff refused to deliver it up, and this action of replevin was thereupon brought to recover it.

In examining the question between these parties, it is proper to say, that, if the fact had not been admitted that the dealing between McQueen & McKay and the plaintiff was in the usual course of trade, the court would yet have felt itself hound to take judicial notice of it. Apart from the fraud imputed to McQueen & McKay, of which Gibson had no knowledge, the statement of facts in this cáse describes the usual course of the great inland commerce by which the larger part of the agricultural productions of the valley of the Mississippi find their way to a market. It has existed long enough to assume a regular form of dealing, aud it embraces such a wide extent of territory, and is of such general importance, that its ordinary course and usages are now publicly known and understood; and it is the duty of the court to recognize them, as it judicially recognizes the general and established usages of trade on the ocean. For if, by any decision of this court, doubt should be thrown upon the validity and safety of a contract fairly made according to the usages of this trade, and in the ordinary course and forms of business, the want of confidence would seriously embarrass its operations, to the injury of all connected with it, and would certainly be not less injurious to the agriculturist and producer than to the merchant aiid trader.

The transaction, therefore, being in the usual course of trade, and free from all suspicion of bad faith on the part of the plaintiff, the question to be decided is, what was the legal effect of the indorsement and delivery of the warehouse documents, in consideration of the advance of money he then made to McQueen & McKay ? In the opinion of the court, it transferred to him the legal title and constructive possession of the property; and the warehousemen from the time of this transfer became his bailees, and held the pork and flour for him. The delivery of the evidences of title and the orders indorsed upon them was equivalent, in the then situation of the property, to the delivery of the property itself.

This mode of transfer and delivery has been sanctioned in analogous cases by the courts of justice in England and this country, and is absolutely necessary for the purposes of commerce. A ship at sea may be transferred to a purchaser by. the delivery of a bill of sale. So also as to the cargo, by the indorsement and delivery of the bill of lading. It is hardly necessary to refer to adjudged cases to prove a doctrine so familiar in the courts. But the subject came before this court in the case of Conard v. The Atlantic Insurance Company, in 1 Pet. 445, where this symbolical delivery was fully considered and sustained. The same principle was decided in the case of Brown v. Heathcote, 1 Atk. 160; Greaves v. Hepke, 2 Barn. & Ald. 131; Atkinson v. Maling, 2 Term Rep. 465; Wilkes and Fontaine v. Ferris, 5 Johns. 335; Pleasants v. Pendleton, 6 Rand. 473; Ingraham v. Wheeler, 6 Wend. 277; Ricker v. Cross, 5 N. Hamp. 571; Gardner v. Howland, 2 Pick. 599; 2 Kent’s Com. 499; Story on Sales, § 311. The rule is not confined to the usages of any particular commerce, but applies to every case where the thing sold is, from its character or situation at the time, incapable of actual delivery. The contract between the plaintiff and Mcdueen & McKay having been made in New York, the articles in the warehouses at Fort Wayne were incapable of actual delivery; consequently, the delivery of the evidences of title, with the order to the bailees indorsed on them, passed the title and possession to the plaintiff.

It is true there is no formal assignment indorsed on the warehouse document. But the technical rules of common law conveyances and transfers of property have never been applied to mercantile contracts made in the usual course and forms of business. The indorsement of the delivery order upon these evidences of his title, like the indorsement upon a bill of lading, sufficiently manifests the intention of the parties that the title and possession should pass to Gibson. And when that intention is evident from the language of the written instruments and the nature and character of the contract, it is the duty of the court to carry it into execution without embarrassing it with needless formalities. A contrary rule would most commonly defeat the object which both parties designed to accomplish, and believed they had accomplished, by the instruments they executed.

Nor, as respects'the legal title, can there be any distinction between the advance made by Gibson, and the case of an actual purchaser. To the extent of his advances he is a purchaser, and the legal title was conveyed to. him. to protect his advances. It is not like the lien of a factor, who makes advances for his principal upon goods in his possession. But even in that case the property cannot be withdrawn from his hands until his advances are repaid. But in the case before us, the title of Gibson is not a mere lien. The legal title, the right of property, passed to him, and Mcdueen & McKay retained nothing but an equitable interest in the surplus, if any remained after satisfying the claims of Gibson. The case of Conard v. The Atlantic Insurance Company, before referred to, was the case of a-loan of money upon a respondentia bond upon a cargo at sea, secured by an assignment on the bill of lading, and in that case the court said, — “ It is true that, in discussions in a court of equity, a mortgage is sometimes called a lien for a debt. And so it certainly is, and something more ; it is a transfer of the property itself as security for the debt. This must be admitted to be true at law, and it is equally true in equity, for in this respect equity follows the law.” 1 Pet. 441.

The guarantee that the articles should pass inspection does not affect the character of the transaction, nor convert it into an executory contract. It is nothing more than the usual warranty of the soundness and quality.of the thing sold, which is taken by the purchaser in every sale of personal property when he does not choose to take the risk upon himself.

It appears that the attachment was laid before the warehouse-men received notice of the transfer to Gibson. Undoubtedly it was his duty to use reasonable diligence in giving notice both to them and the agent at Toledo. And negligence in this respect on his part would be regarded as evidence of fraud, and might moreover put in jeopardy his right of property, if it passed into the hands of a bona fide purchaser without notice, and in the usual course of trade. But in this case there has been no unreasonable delay. The notice was promptly given, and the receipt of it by the bailees was not necessary to complete his title. As between him and the creditors of McQ,ueen & McKay, the property and possession vested in him at the time of the transfer and delivery of the documents. The cases before referred to establish this principle.

Neither is the equitable interest of Mcdueen & McKay m the surplus (if any remain) material to the decision. This equitable interest is no doubt liable to attachment by the laws of Indiana. But that liability will not authorize the attaching creditor to take the property out of the hands of the legal owner, before his claims upon it are discharged. The equity of redemption upon a mortgage of real property is liable to attachment. But it will scarcely be contended, that the attaching creditor, or a purchaser under the attachment, or the officer levying it, could maintain an ejectment against a mortgagee in possession, or in any other way interfere with his possession, when holding it as security for money due him. The same rule applies to a mortgagee of personal property holding the legal title and possession to secure his advances.

Upon the whole, therefore, we think there is error in the judgment of the Circuit Court, and that it must be'reversed.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Indiana, and was argued by. counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs', and that this cause be, and the same is hereby, remanded to the said Circuit Court, for further proceedings to be had therein in conformity to the opinion of this pourt.