United States v. Thomas Morris.

THE UNITED STATES V. THOMAS MORRIS, Marshal, &c.

The Secretary of the Treasury has power, under the act for the mitigation and remission of forfeitures, to remit as well the moiety or share allowed to individuals as the part belonging to the government.

And a decree of condemnation or judgment has not the effect so to vest or consummate the rights of individuals, as to secure them against the exercise of this power.

There is no analogy between this power and the power of the King to pardon in England.

And it is a power wholly distinct from the constitutional pardoning power of the President.

Its object is to afford merited relief where Courts of Justice are obliged to inflict the penalty.

How far a Court can regard the innocence of a party when the facts of a case subject it to the penalties of a statute, and especially of the collection law? Quere.

The word prosecution, as it is used in the act for the remission of penalties, comprehends all the proceedings in a suit as well before as after judgment, including the execution.

As to the period at which the power of the Secretary to remit ceases? Quere. But, it seems, not before the penalty has been collected and distributed. Whether the Secretary has the exclusive right to determine at what period he may legally remit? Quere.

Departure in pleading defined.

A judgment had been recovered by the United States for a penalty, which was afterwards remitted. The Marshal, to whom an execution was issued, had made a levy, but on being served with the warrant of remission, re-delivered the goods to the debtors. An action was thereupon brought against him in the name of the United States for the moiety of the penalty allowed to the officers; but the declaration alleged no interest in them, but only in the United States. The defendant pleaded the remission. The plaintiffs replied the interest of the officers. On special demurrer, held to be a departure. Whether an individual who has rights under a judgment of the United States can have a remedy for a violation of those rights, by a suit in the name of the United States, or must resort to an action for consequential damages in his own name? Quere.

Whether an execution for the sole benefit of an individual, on a judgment of the United States, can be issued into any district of the United States as it might be if it were for their use? Quere.

United States v. Thomas Morris.

Whether an action can, in any case, be brought for an individual in the name of the United States, by any attorney other than the District Attorney, he refusing to bring it? Quere.

THIS was an action of trespass on the case, for the misfeasance of the defendant in discharging certain goods from a levy, which he had made as Marshal of the Southern District of New-York, under an execution issued upon a judgment of the plaintiffs, and restoring the goods so levied upon, to the debtors.

Before the commencement of the action, an order had been obtained from Mr. Justice Livingston, on an affidavit stating the cause of action, and that the District Attorney of the United States for this District had refused to act as attorney in the suit, or allow his name to be used; appointing one of the attornies of the Court to prosecute the action for the plaintiffs.

The declaration stated the recovery, by the plaintiffs of a judgment in the Circuit Court of the United States for the District of Maine, for 22,361 dollars and 75 cents, with costs of suit, at the September term in 1817, against Andrew Ogden, Abraham K. Smedes, and Thomas C. Butler, of New-York, and that the same remained unsatisfied to the amount of 11,180 dollars and 87 cents. It was then alleged, that a writ of execution for this sum was issued upon the judgment, directed to the Marshal of the District of Maine, or any other District of the United States, and was delivered to the defendant, as Marshal of the Southern District of New-York, who levied under it, and returned, that the goods levied upon remained in his hands for want of buyers. That, after a second execution had been issued, and a like return made, a venditioni exponas was issued and delivered to the defendant, who might have sold the goods levied upon for a sufficient sum to satisfy the execution, but that, instead of proceeding to sell according

· United States v. Thomas Morris.

to the command of the writ, he re-delivered the goods to the debtors, Ogden, Smedes, and Butler.

The defendant pleaded the general issue, and a special plea, stating the following facts:

That after the receipt by him of the venditioni exponas, Ogden, Smedes, and Butler produced and delivered to him two warrants of remission of the forfeiture, for which the judgment mentioned in the declaration was recovered, granted at different times by the Secretary of the Treasury pursuant to the statute of the United States, entitled " an act to provide for mitigating or remitting the forfeitures, penalties, and disabilities accruing in certain cases therein mentioned," and dated, the one on the 9th of February, and the other on the 17th of December, 1818.

The warrants were set forth in hæc verba, and recited a statement of facts and petition which had been presented by Andrew Ogden and others to the District Judge of the District of Maine, and by him transmitted, agreeably to the act for the remission of forfeitures, to the Secretary of the Treasury. The facts stated were, that the brig Hollon and her cargo, imported by Andrew Ogden into the District of Maine, had been forfeited under "an act to interdict the commercial intercourse between the United States and Great Britain and France and their dependencies, and for other purposes,” and "an act concerning the commercial intercourse between the United States and Great Britain and France and their dependencies, and for other purposes," and the statute supplementary to the last mentioned act; and that on the seizure of the Hollon and cargo, Ogden, Smedes, and Butler had given their bond for their appraised value, on which a suit had been brought in the District Court for the District of Maine. The warrants then proceeded to declare that the Secretary of the Treasury, having considered these circumstances, did, by the

United States v. Thomas Morris.

authority vested in him by the act for the remission of forfeitures," remit to the petitioner, all the right, claim, and demand of the United States, and of all others whomsoever, to the said forfeitures, upon payment of the duties which would have been payable had the importation been lawful, and the costs and charges, and on payment of five hundred dollars to be distributed among the custom-house officers in the proportions prescribed by law."

There was also an averment, that the judgment mentioned in the declaration was rendered upon a bond executed by Ogden, Smedes, and Butler to the United States, for the appraised value of the brig Hollon and a part of her cargo, by reason of the forfeiture mentioned in the warrants of remission.

The defendant in his plea further alleged, that at the time he was so served with the warrants of remission, Ogden, Smedes, and Butler paid him the five hundred dollars therein specified, and the costs of the writs, which he, at the return of the venditioni exponas, paid into the Registry of the District Court for the District of Maine, and that the said Ogden, Smedes, and Butler had previously paid to the person authorized to receive the same, the duties required to be paid by the warrants of remission. That they thereupon demanded of him, that the said goods should be discharged from the levy, and restored to them; and that he did accordingly restore them, free from such levy, as he was bound to do.

The plea then recited the return made by the defendant to the venditioni exponas, in which all the facts before stated in the plea were set forth in full.

To this plea the plaintiffs replied as follows:

And the said plaintiffs, as to the said plea of the said defendant, say, that they ought not to be barred, &c. because, they say,

United States v. Thomas Morris.

that although true it is that the said William H. Crawford, as such Secretary of the Treasury of the United States, did make and issue the said warrants of remission, as in the said plea of the said defendant is alleged, yet for replication in this behalf, the said plaintiffs in fact say, that heretofore, to wit, at the time of the recovery of the judgments in the said declaration mentioned, and at the times of the issuing of the several executions thereon, and of their delivery to the said defendant, in said declaration mentioned, and at the times of the seizure, forfeiture, and condemnation of the brig Hollon, her tackle, apparel, and furniture, together with certain goods and merchandise hereinafter mentioned, and at the time of the making and issuing the said warrants of remission, and at the time of the service thereof on the said defendant, and of the payment to him of the sums of five hundred dollars, and of three dollars twenty-five cents by the said Ogden, Smedes, and Butler; and at the time of the said defendant's paying said two last mentioned sums of money into the registry of the said District Court of the said United States of America, in and for the District of Maine; and at the time of the payment of the said duties, costs, and charges, by the said Ogden, Smedes, and Butler, as in the said plea mentioned, Isaac Ilsley was Collector of duties on imports and tonnage for the District of Portland and Falmouth, in the said District of Maine, and James C. Jewett was Surveyor of the said District of Portland and Falmouth; and the said Ilsley and Jewett being such Collector and Surveyor, the said Ilsley, under, and by virtue of his said office, on the fifth day of July, 1813, at Portland, in the said District of Portland and Falmouth, and on waters navigable from the sea in vessels of ten and more tons burthen, seized the said brig Hollon, said brig being a vessel of said United States, and owned by a citizen thereof, her tackle, apparel, and furniture, together with certain goods and merchandise, as forfeited to the said United States of