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The Sloop Active.

case which is not very obviously within the plain provisions of it. The Court, so far from being of this opinion, is inclined to think that the only purpose for which an inspection was to be undergone, was to entitle the vessel to a clearance, without which, she could not depart from any district of the United States, without subjecting herself to forfeiture, which was a sufficient security for the observance of that ceremony.

On looking into the sections of the collection law which have been referred to, the Court does not perceive one word said of inspection, or any penalty imposed for not submitting to one. The one inflicts a penalty for landing goods without proper authority; and the other for landing them at night, or without a permit. All the clauses of the act which relate to inspection, are directory to the public officers; and should a Collector neglect to put an inspector on board, or grant a permit to land without that formality, whatever penalties he might incur himself, neither goods nor vessel would be forfeited. As no forfeiture, therefore, arises from the mere circumstance of goods which are imported not having been inspected previous to their landing, how can this Court undertake to say, without some more explicit declaration, that the bare putting them on board without such ceremony, shall work a confiscation of them ? Besides, she was still within the district, and might have applied for a clearance, when it would have been the Collector's duty to have the lading inspected. But if he had granted a clearance without that form, it can hardly be supposed that his negligence or omission would have occasioned a forfeiture. The only way in which this section of the embargo law can be understood, and which is also its grammatical construction, is that the officers of the revenue, in performing the inspection, are to be subject to the penalties, &c. there referred to.

It would be highly gratifying to the Court, to obviate with as much facility and as much satisfaction to itself, the other

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ground which is stated in the libel as a cause of condemnation, which is that this vessel has been employed in a trade other than that for which she was licensed.

The 32d section of the act for enrolling and licensing vessels is very express on this point. If any licensed ship or vessel shall be employed in any other trade than that for which she is licensed, she and the cargo found on board of her are forfeited. If the act which has been under consideration were liable to the charge of ambiguity, there appears no room for any uncertainty here. But to avoid the force of terms so plain, and which seem to admit of but one meaning, it is insisted, that here was no employment of the Active in any trade; and that if there was, it was not such trade as the legislature contemplated.

As to the fact of employment, it appears that the Active was stopped in her passage from New-London to Mistic river; and she was taken in the very act of transporting goods from the one place to the other, or in other words of trading between those two places. And whether a freight was to be had or not, made no difference, because it is the employment of her that way that constituted the illegality of the transaction. If then this was the kind of trade that was prohibited to her, one single act in violation of the prohibition, and whether she had reached her destined port or not, is sufficient to produce a forfeiture. Being actually employed or engaged in a trade for which she was not licensed, while she was going to Mistic river, there could be no necessity to wait until the voyage was ended.

But this cannot be the trade intended to be interdicted. It is only foreign trade, or such whereby the revenues of the United States may be defrauded. This is said with some plausibility, and it was supposed on the argument that such were the terms of the license, and of the condition of the bond given to obtain it. But on looking at the license and the law,

The Sloop Active.

it will be found that the first, besides declaring that the ACtive shall not be employed in any trade whereby the public revenue shall be defrauded, contains also a declaration that the owner had sworn that she should not be employed in any other way than is therein specified. The condition of the bond likewise contains a security against both these violations. It is true that the 33d section has a provision in favour of a bona fide importer of goods on which the duties have been secured, but this is only an exemption in the particular case from the operation of the preceding section which takes in the whole cargo, and is no proof that no other than foreign trade was intended. It seems to be the policy of the legislature to confine every vessel within its proper sphere; but whatever may have been the intention here, the language is too plain to indulge any latitude of construction ; and when that be the case, a Court should resist, which it is always easy to do, those inclinations to liberality of construction which often border on legislation, and which are too apt to arise from the supposed hardship of the case. be one of that description, but from the impression made, I feel it my duty, after mature consideration, and for the reasons stated, to affirm the sentence of the District Court.

This may

D. DAGGETT for the appellants.
H. HUNTINGTON, D. A. for the respondents.

Note. This cause was afterwards carried to the Supreme Court, and the de: cision affirmed. Vide 7 Cranch, 100.

CIRCUIT COURT OF THE UNITED STATES,

CONNECTICUT, APRIL TERM, 1810, AT NEW-HAVEN.

BEFORE

Hon. BROCKHOLST LIVINGSTON, Associate Justice of the Sa

preme Court.
Hon. PIERPOINT EDWARDS, District Judge.

THE UNITED STATES V. John PARMELE.

No action will lie in the name of a principal, on a writien contract made by his

agent in his own name, although the defendant may have known the agent's character; and a demurrer, in such a case, to the declaration, where the United States were the plaintiffs, was sustained.

LIVINGSTON, J. This cause coming up on a demurrer to the declaration, if that be insufficient there must be judgment for the defendant below.

This action is brought on a written contract of the defendant, by which he acknowledged to have received from one Stephen Rainy one hundred barrels of flour, and agreed to be hoiden therefor to Alexander Wolcott, Esquire, or order, when called for, he paying ten cents per barrel storage.

The objections to the declaration are, that no demand is stated to have been made of the defendant, nor any tender of the storage; and that no action will lie on this agreement in the name of the United States.

United States v. John Parmele.

The last objection is the only one which will be examined, for if that be well taken, the plaintiffs cannot recover in this suit.

To obviate the force of this objection, which seemed to be felt, it has been said, that the action is not founded on the written contract, but on the right which vested in the United States by the seizure and condemnation of this property; and that the agreement was only made use of as evidence. Whether such an action could have been brought, this Court is not bound to say ; but the present suit is not of that description. It proceeds entirely on the defendant's contract, and the Court, if it cannot discover his liability there, has no right to look for it elsewhere.

It is also contended, that an interest in the United States is sufficient for the purpose of maintaining this suit. Such an interest, it is true, is disclosed in the declaration, so far as a seizure and confiscation could give it; but a science of these matters not being imputed to the defendant, it is not easy to perceive how he could suppose the public had any interest in the flour committed to his keeping. But if he knew every thing, it will not, in the judgment of this Court, make any difference.

The United States, in a case of this kind, have no privilege or rights beyond those of an individual. If they sue on a contract; they are as much held to prove it as a private citizen, and any variance will be as fatal in the one case as the other. If this flour had been private property, but not that of Rainy or Wolcott, and it had been known to be so to the defendant, yet on this contract no suit could have been maintained, but in the name of the parties to it. None of the cases cited show that the cestuy que trust can bring an action at law, on an agreement made with his trustee. There is a fitness in confining the remedy to the party to whom the promise is made; in which case the judgment can always be pleaded in har to

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