2083. After entry made of goods, the collector, naval officer, or other officer of the customs, may, on suspicion of fraud, open and examine in the presence of two or more reputable merchants, any packages thereof, and if they be found to agree with the entries, such officer shall cause them to be repacked and delivered to the owner forthwith, and the expense of the examination shall be paid by such officer, and allowed him in the settlement of his account. But if any package so examined be found to differ in its contents from the entry, the goods contained therein shall be forfeited, unless it be made apparent to the collector and naval officer of the district, where there is one, that such difference proceeded from mistake or accident, and not from any intention to defraud the revenue.(1)*

2084. Every collector, naval officer and surveyor, or other person specially appointed by either of them for that purpose, shall have authority to enter any vessel in which they shall have reason to suspect goods subject to duty to be concealed, and therein to search for, seize and secure such goods.(2)

2085. And if they have cause to suspect a concealment thereof in any particular dwelling house, store, building, or other place, they or any of them, upon proper application on oath to any justice of the peace, shall be entitled to a warrant to enter such house, store, or other place, (in the day time only) and there to search for such goods, and if any be found to seize and secure them for trial; and all such goods on which duties shall not have been paid, or secured to be paid, shall be forfeited.(2)†

(1) Act 2d March, 1799, sec. 67.

(2) Ibid. sec. 68.

* If an entry be made by an agent of the owner, on his behalf, of only part of the goods which the packages contain, and the owner make a post entry of the residue, and the packages be opened several days afterwards, and examined by the collector in the presence of two merchants, and the contents agree with the two entries taken together, but differ materially from the first entry, the collector may seize the goods, after the second entry: and such seizure must be followed by confiscation, unless it appear that such difference proceeded from accident and mistake, and not from intention to defraud the revenue.-United States v. Six packages of goods, 6 Wheat. 520.

Where goods are libelled under the 67th section of the act of 1799, on the ground that they do not correspond with the entries, and the claimant sets up a mistake as an excuse, the circumstance that a probable cause of seizure has been made out, does not impose on the claimant the necessity of making out an unusually clear case of mistake all that is incumbent on him, is to produce ordinary proof.-United States v. Nine packages of linen, 1 Paine, 129.

It was holden a sufficient and legal excuse for an incorrect entry of goods, that they were entered from an invoice, made out in great hurry and agitation, while the goods were packed at Caen, in the absence of the owner, in order to secure them by removal from an apprehended pillage by the Prussian soldiery who occupied the place.-Ibid.

A libel of information, under the said 67th section, against goods, for differing in description from the contents of the entry, it is not essential to allege an intention to defraud the revenue; the proviso exempting from forfeiture in case the difference proceeds from accident or mistake, and not from an intention to defraud the revenue," is properly matter of defence to be asserted and proved by the claimant.— Two hundred chests of tea, 9 Wheat. 430.

66

The term "concealed," in the 68th section of the act of 1799, 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. The forfeiture inflicted by that section does not extend to a case where the duties not having been paid, or secured in any other manner than by giving the general bond and storing the goods according to the 62d section of the act, the goods were fraudulently removed from the store-house, agreed upon by the collector, and the importer by some person other than the claimants, who were bona fide purchasers of the goods, and without their knowledge and consent, shipped to another port, where they were found stowed on board the vessel in which they had been transported in the usual manner of stowing such goods when shipped for transportation.-United States v. 350 chests of tea, 12 Wheat. 486, 1 Paine, 499, S. C.

2086. All goods seized as forfeited shall be, and remain in the custody of the collector or such person as he shall appoint, until it shall have been determined whether they be forfeited: if they be adjudged not forfeited they shall be forthwith restored to the owner.(1)

2087. If any person shall conceal or buy any goods knowing them to be liable for seizure (by act second of March, 1799,) he shall on conviction forfeit and pay double the value of such goods.(1)

2088. All penalties accruing by any breach of the revenue laws, shall be sued for, and recovered, with costs of suit, in the name of the United States of America, in any court competent to try the same; and the trial of any fact, in issue, shall be within the judicial district in which such penalty shall have accrued; and the collector, within whose district the seizure shall be made, or forfeiture incurred, shall cause suits therefor to be commenced without delay, and prosecuted to effect; and may receive from the court, or proper officer thereof, the sums so recovered, deducting all proper charges, to be allowed by the court, and shall distribute the same without delay, according to law, and transmit, quarter yearly, to the treasury, an account of all the moneys by him received for fines, penalties, and forfeitures, during such quarter.(2)

2089. And all vessels and goods, which shall become forfeited in virtue of the revenue laws, shall be seized, libelled, and prosecuted, in the proper court; which court shall cause fourteen days' notice to be given of such seizure and libel, by causing the substance of such libel, with the order of the court thereon, setting forth the time and place appointed for trial, to be inserted in some newspaper published near the place of seizure, and also by posting up the same in the most public manner, for the space of fourteen days, at or near the place of trial, for which advertisement a sum not exceeding ten dollars shall be paid: and proclamation shall be made in such manner as the court shall direct; and if no person shall appear and claim such vessel or goods, and give bond to defend the prosecution thereof, and to respond the cost in case he shall not support his claim, the court shall proceed to hear and determine the cause, according to law; and upon the prayer of any claimant, that any vessel or goods so seized and prosecuted, or any part thereof, should be delivered to him, the court may appoint three proper persons to appraise such vessel and goods, who shall be sworn in open court, for the faithful discharge of their duty; and such appraisement shall be made at the expense of the party on whose prayer it is granted; and on the return of such appraisement, if the claimant shall, with one or more sureties, to be approved of by the court, execute a bond in the usual form, to the United States, for the payment of a sum equal to that at which the vessel or goods, so prayed to be delivered, are appraised, and shall produce a certificate from the collector of the district wherein such trial is had, and of the naval officer thereof, if any there be, that the duties on the goods, or tonnage duty on the vessel, so claimed, have been paid, or secured, in like manner as if the goods or vessel had been legally entered, the court shall, by rule, order such vessel or goods to be delivered to such claimant; and such bond shall be lodged with the proper officer of the court, and if judgment shall pass in favour of the claimant, the court shall cause such bond to be cancelled; but if judgment shall pass against the claimant, as to the whole or any part of such vessel or goods, and the claimant shall not, within twenty days thereafter, pay into the court, or to

(1) Act 2d March, 1799, sec. 69.Act 3d March, 1823, sec. 2.

(2) Act 2d March, 1799, sec. 89.-Act 1st March, 1823, sec. 35.-Act 24th Feb. 1807, sec. 1.

the proper officer thereof, the amount of the appraised value of such vessel or goods so condemned, with the costs, judgment shall be granted on the bond, on motion in open court, without further delay.(1)

2090. In any cause of admiralty and maritime jurisdiction, or other case of seizure, depending in any court of the United States, any judge of the said court, in vacation, shall have the same power and authority to order any vessel, or cargo, or other property, to be delivered to the claimants, upon bail or bond, under the statute, as the case may be, or to be sold when necessary, as the said court now has in term time, and to appoint appraisers, and exercise every other incidental power necessary to the complete execution of the authority herein granted; and the said recognizance of bail or bond, under such order, may be executed before the clerk, upon the party's producing the certificate of the collector of the district, of the sufficiency of the security offered; and the same proceedings shall be had in case of said order of delivery, or of sale, as are now had in like cases when ordered in term time: Provided, That upon every such application, either for an order of delivery or of sale, the collector and the attorney of the district shall have reasonable notice in cases of the United States, and the party or counsel in all other cases.(2)

And when any prosecution shall be commenced on account of the seizure of any vessel, or goods, and judgment shall be given for the claimant, if it shall appear to the court before whom such prosecution shall be tried, that there was a reasonable cause of seizure, the court shall cause a proper certificate or entry to be made thereof, and in such case the claimant shall not be entitled to costs, nor shall the person who made the seizure, or the prosecutor, be liable to action, suit, or judgment, on account of such seizure and prosecution: Provided, That the vessel or goods be, after judgment, forthwith returned to such claimant or his agent.(3)*

(1) Act 2d March, 1799, sec. 89.-Act 1st March, 1823, sec. 35.-Act 24th Feb. 1807, sec. 1,

(2) Act April 5th, 1832.

(3) Act 2d March, 1799, sec. 89.-Act 1st March, 1823, sec. 35.-Act 24th Feb. 1807, sec. 1.

* A bond voluntarily given upon the delivery of property on bail on the application of the claimant, is good, although the condition does not exactly conform to the terms of the 89th section of the act 2d March, 1799.-The Struggle, 1 Gallis, 476.

Even if such bond were void, the court would by attachment enforce a re-delivery of the property by claimant.-Ibid.

:

Proceedings by libel were instituted upon a seizure of goods, and a bond given for their appraised value on the delivery of goods to claimant afterwards the libel was by amendment changed to an information, and the goods were condemned. On an application for an attachment against the obligers in the bond, it was held, that although the case was not regularly within the 89th section of the collection law, yet a compliance with the stipulations of the bond might be enforced by attachment.-United States v. Four part pieces of woollen cloth, 1 Paine, 435.

And it was held, that it made no difference that the obligers were only sureties, and had not themselves received the goods.—Ibid.

If the claimant be not a party to the bond, all the obligors are to be deemed principals. Ibid.

The forfeiture for a violation of the law takes place on the commission of the offence, and avoids a subsequent sale to an innocent purchaser, although there may have been a regular permit for landing goods, and although the duties may have been paid.-United States v. 1960 bags of coffee, 8 Cr. 398. United States v. the Mars, 8 Cranch, 417.

A forfeiture attaches in rem the moment the offence is committed, and the property is instantly divested.-Gelston et al. v. Hoyt, 3 Wheat. 246, 311.

The property of an owner may, in many cases, be forfeited for an offence com

2091. All vessels or goods, which shall be condemned by virtue of this act, and for which bond shall not have been given by the claimant, shall be sold by the marshal, or other proper officer of the court in which condemnation shall be had, to the highest bidder, at public auction, by order of such court, and at such place as the court may appoint, giving at least fifteen days' notice, (except in case of perishable goods,) in one or more of

mitted without his knowledge or procurement.—Cross v. United States, 1 Gallis, 26.

A purchase of goods which have become forfeited to the United States, will not purge the forfeiture, where the purchase has been made under a full knowledge of the facts, or of such facts as were sufficient to put the party on inquiry.-The Ploughboy, 1 Gallis, 41.

Where property is libelled as prize, the United States cannot seize it as forfeited under a municipal law so as thereby to defeat the prize jurisdiction. The only proper mode of proceeding, is to interpose a claim in the prize court upon a seizure for the forfeiture, and this claim is in the nature of an information. If upon a hearing, the title of prize is defeated, and the claim of the owners rejected on account of any illegal conduct, condemnation must be to the United States.-The Gefla, 1 Mason, 88.

But whether the forfeiture shall be to the United States, generally, or be distributed, depends not at all upon the mode of proceeding, but upon the fact whether there be seizing officers or others, who in the given case have entitled themselves to a share in the forfeiture.-Ibid.

Thus where a claim was interposed by the United States, in a prize proceeding, upon a seizure for a forfeiture, under the non-importation law, and the title of the captors and claimants were defeated, the property was condemned to the United States, subject to distribution according to the provisions of the 91st section of the act 2d March, 1799.—Ibid.

To entitle a party to claim a proportion of a forfeiture, on the ground of being an informer, the information need not be as full as the evidence would warrant. It is enough if it be acted upon, induces the prosecution, and contributes eventually to the recovery. Neither is it necessary that the information should be accompanied by a claim to a part of the forfeiture, or that the officers of the revenue cutter, claiming on this ground, should themselves have made the seizure, or concerned themselves in the prosecution.-Sawyer et al. v. Steele, 3 Wash. C. C. R. 464.

The consent of the claimants that the vessel should be sent into another district for adjudication, or a disavowal by them of having instituted the suit, does not amount to a waiver by them of their right to a share of the forfeiture.-Ibid.

But the collector is not responsible for such part of the forfeiture as he may have paid over bona fide, to other officers for their shares, before notice of the plaintiff's claims.

When the circumstances proved in a revenue case are incapable of explanation consistent with the innocence of the party, condemnation follows, although there be no positive proof of the commission of the offence. Circumstances are sometimes more convincing than the most positive evidence.-The Robert Edwards, 6 Wheat. 187.

Although a mere intention to evade the duties be not per se a cause of forfeiture, yet when a question arises, whether an act has been committed which draws after it that consequence, such intention will justify the court, in not putting on the conduct of the party, in respect to the act in question, an interpretation as favourable as under other circumstances it would be disposed to do. Ibid.

A decree of acquittal on a proceeding in rem, without a certificate of probable cause of seizure, and not appealed from with effect, is conclusive in every inquiry before any other court, that there was no justifiable cause of seizure.-The Apollon, 9 Wheat. 362.

Under the revenue laws, the collector acquires an inchoate right by the seizure; which, by the subsequent decree of condemnation, gives him an absolute vested title to his share in the forfeiture, though he may die or be removed, in the intermediate time. The right to share in the forfeitures and penalties accruing under such acts, belongs to the collector who makes the seizure, or brings the suit, and not to the collector and surveyor in office at the time of the judgment, or receipt of the forfeiture.-Jones v. Shore's Exor's, 1 Wheat. 462. Vanness v. Buel, 4 Wheat. 74.

the public newspapers of the place where such sale shall be; or, if no paper is published in such place, in one or more of the papers published in the nearest place thereto; for which advertising, a sum not exceeding five dollars shall be paid. And the amount of such sales, deducting all proper charges, shall be paid, within ten days after such sale, by the person selling, to the clerk, or other proper officer of the court directing such sale, to be by him, after deducting the charges allowed by the court, paid to the collector of the district in which such seizure or forfeiture has taken place, as hereinbefore directed.(1)

2092. All fines, penalties, and forfeitures, recovered by virtue of the revenue acts, (and not otherwise appropriated,) shall, after deducting all proper costs and charges, be disposed of as follows; one moiety for the use of the United States, to be paid into the treasury thereof, by the collector receiving the same; the other moiety shall be divided between, and paid in equal proportions, to the collector and naval officer of the district, and surveyor of the port, wherein the same shall have been incurred, or to such of the said officers as there may be in such district; and in districts where only one of such officers shall have been established, such moiety shall be given to such officer. But in all cases where such penalties, fines, and forfeitures, shall be recovered in pursuance of information given to such collector, by any person other than the naval officer or surveyor of the district, the one-half of such moiety shall be given to such informer, and the remainder thereof shall be disposed of between the collector, naval officer, and surveyor or surveyors.(2)

2093. Where any fines, forfeitures, and penalties, incurred by virtue of the revenue acts, are recovered in consequence of any information given by any officer of a revenue cutter, they shall, after deducting all proper costs and charges, be disposed of as follows: one-fourth part for the use of the United States, and paid into the treasury thereof, in manner as before directed; one-fourth part for the officers of the customs, to be distributed as hereinbefore set forth; and the remainder thereof to the officers of such cutter, to be divided among them agreeably to their pay.(2)

2094. Whenever a seizure, condemnation, and sale, of goods, shall take place within the United States, and the value thereof shall be less than two hundred and fifty dollars, that part of the forfeiture which accrues to the United States, or so much thereof as may be necessary, shall be applied to the payment of the costs of prosecution. If any officer or other person, en. titled to a part of such fines, penalties, or forfeitures, shall be necessary as a witness on the trial, he may be a witness; but in such case he shall not receive, nor be entitled to, any share of such fine, penalty, or forfeiture; and the share to which he otherwise would have been entitled, shall revert to the United States.(2)*

2095. Where the forms of official documents prescribed by the revenue laws shall be substantially complied with, according to the true spirit and meaning thereof, no penalty or forfeiture shall be incurred by a deviation therefrom. And the officers of the treasury department, according to their

(1) Act 2d March, 1799, sec. 90.

(2) Act 2d March, 1799, sec. 91.

The share of the forfeiture to which the collector, &c., is entitled, under this section, is to be paid to him who was collector, &c., in office at the time the seizure was made, and not to his successor in office at the time of condemnation and receipt of the money. In case of illegal capture, in violation of the neutrality of this country, the property of the lawful owners cannot be forfeited for a breach of its revenue laws, by the captors or persons who have rescued the property from their possession.-The Belle Corrunes, 6 Wheat. 152.