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United States v. One Case of Hair Pencils.

mony when he attended the examination; and I cannot think that the United States are to be concluded by any presumed knowledge of the fact by the District Attorney. He is not officially charged with the business and duty of taking such bonds, and it would be carrying the doctrine of constructive notice to an unreasonable length, to bind the United States thereby, in a case like the present. I have no difficulty in saying, as a general rule, that when the objection is known at the time of taking the deposition, it should be then made. It is no more than just and reasonable to presume, in such case, that the party intended to waive the objection.

But there can be no presumption of a waiver, where the party is ignorant of the fact from which it is to be presumed, and where the law does not cast upon him any such knowledge. Good faith and fair dealing require the objection to be made at the time of the examination of the witness, when known, in order to give the party an opportunity of removing the objection. This, in ordinary cases, might be done by a release ; but in the present case it was not in the power of the party to discharge the interest. Nor could this have been done by the commissioner; he had no authority to substitute any other security. The objection, therefore, in this case could have only had the effect of giving notice to the party, so as to enable him to apply to the proper authority to change the security, and have the deposition afterwards taken. The claimant knew of the interest, and he ought not to be permitted to speculate upon the event of such knowledge by the opposite party, but should have called upon himn to know whether the objection would be insisted upon.

To preclude the objection at the trial, when the fact upon which it is founded is discovered, without imputing any negligence to the party from whom the objection comes, would, I think, be unjust, and against the sound and wholesome rules of evidence, and would be going beyond what has been sanc

United States v. One Case of Hair Pencils.

tioned by any of the cases cited on the argument, or which have fallen under my observation.

In the case of Bland v. The Archbishop of Armagh, the evidence was voluntary affidavits taken at the commencement of the suit by the consent of parties. The objection was not on the ground of interest, but bias or partiality growing out of circumstances well known to the party at the time the affidavits were taken, and he had also consented to a hearing in the cause after publication, without taking an objection to the evidence. If the objection would, therefore, at any time have gone to the competency of the testimony, it was a strong case of waiver, with full knowledge of the circumstances. So also in the case of the Corporation of Sutton Coldfield v. Wilson.5 The objection was, that the witness was a member of the corporation, and he had been cross-examined, not only as to his being a member of the corporation, but on the merits. Here then was full knowledge of the interest when the cross-examination was gone into. And when the Court, therefore, say the cross-examination makes a witness competent, though otherwise liable to exception, it must be taken in reference to the circumstances appearing in that case, and which brings the case within the rule I have laid down.

The same remarks are applicable to the case of Ogle v. Paleski, which was much relied upon on the argument. The action was against the defendant as owner of a ship, which by negligence in the management had injured the plaintiff's brig. The cause had been put off on a former occasion at the instance of the defendant, with liberty reserved to the plaintiff to examine witnesses on interrogatories. And the evidence offered was the answers of the captain of the plaintiff's ship; and the first answer discloses the fact, that the witness was on board the ship at the time of the accident. The objection was, that his examination could not be read without showing a release before it was taken. The answer was, that the objection was

f 3 Brown's Par. Ca. 622.

§ 1 Vernon, 254,

h Holt's N. P. Rep. 485.

United States v. Coe Case of Hair Pencils.

apparent on the examination, and should then have been made, before cross-examining the witness; that the objection might be waived, and that it had been waived, by not taking it at the time when it might have been disposed of by a release. And Chief Justice Gibbs said, the objection ought to have been made in a former stage of the cause, and not having been thus made, when it might have been cured, it ought not to prevail.

This was a decision in perfect harmony with the rule which governed the other cases I have referred to, and to which I yield my full assent. But the present case does not fall within it. There is an essential, and, I think, a controlling fact which distinguishes it; the want of either actual or constructive notice of the interest of the witness, when the deposition was taken. The judgment must, therefore, be reversed, which would supersede the necessity of examining the other question. But as it has been fully argued, and will doubtless arise, should the cause be again tried, it may not be amiss for me to express my opinion upon it.

2. By the 22d section of the act of the 20th of April, 1818, upon which the libel is founded, the Collectors are required “to cause at least one package out of every invoice, and one package at least out of every fifty packages, of every invoice of goods, wares, or merchandise imported into their respective districts, to be opened and examined ; and if the same be found not to correspond with the invoice thereof, or to be falsely charged in such invoice, a full inspection of all such goods, wares, or merchandise, as may be included in the same entry, shall be made; and if any package is found to contain any article not described in the invoice, the whole package shall be forfeited.” It is necessarily implied in the bill of exceptions, from the statement of the objection, that in point of fact, the entry at the custom-house did not correspond with

i 6 Vol. L. U.S. 306.

United States v. One Case of Hair Pencils.

the invoice. And the point of inquiry is, whether the Judge erred in submitting to the jury the question, whether such difference proceeded from accident or mistake, and not from an intention to defraud the revenue?

I did not understand the counsel for the claimant aś contending that, under the provisions of the act of 1818, this would be a proper inquiry for the jury. But it is said, that the proviso to the 67th section of the act of the 2d of March, 1799, is still in force, and applicable to the case. The enacting clause in this section authorizes the Collector, after entry made of any goods, &c. on suspicion of fraud, to open and examine, in the presence of two or more respectable merchants, any package or packages, and if found to differ in their contents from the entry, then the goods, wares, or merchandise contained in such package or packages shall be forfeited. Provided, that the said forfeiture shall not be incurred, if it shall be made to appear to the satisfaction of the Collector, &c. or of the Court in which a prosecution for the forfeiture shall be had, that such difference proceeded from accident or mistake, and not from an intention to defraud the revenue. this proviso is to be considered in force, the question was properly submitted to the jury. For although the proviso in terms refers the question to the Court, yet at the time this act was passed it was generally understood, that seizures upon land as well as upon the water were to be tried by the Court. And as under the decision of the Supreme Court seizures on land are now to be tried by a jury, it would be no more than a reasonable construction of this proviso to consider the jury as substituted in the place of the Court to try the question of mistake or accident.

But I think this proviso cannot be considered in force, but is repealed by implication by the act of 1818. It is true, this latter act purports to be supplementary to the act of 1799. And it is admitted, that a repeal by implication of a


United States v. One Case of Hair Pencils.

former by a latter statute, is not to be favoured. But such effect and operation is indispensable in some cases. As when the subsequent statute is inconsistent with the former, and the two cannot be reconciled. So where the latter is on the same subject matter with the former, and introduces some new qualifications, or modifications; the former must necessarily be repealed, the two cannot stand together. And in most cases the question resolves itself into the inquiry, what was the intention of the legislature ? Did it mean to repeal or take away the former law, or was the new statute intended as merely cumulative ? Affirmatives in statutes that introduce new laws, imply a negative of all that is not in the purview. So that a law directing a thing to be done in a certain manner, implies that it shall not be done in any other manner.

Let us test the present case by these rules. The subject matter of the 22d section, of the act of 1818, is the same with that of the 67th section of the act of 1799, viz.: To ascertain whether the contents of the packages corresponded with the entries made at the custom-house, and to declare the whole package forfeited when they disagree. But the mode and manner in which this is to be ascertained, and the duty imposed upon the Collectors of the customs in relation thereto, differ in the two acts. In the act of 1799, it is left discretionary in the custom-house officers, to make the examination or not. It is made lawful for them so to do when fraud is suspected ; and this examination is to be made in the presence of two or more respectable merchants. The examination in this case is bottomed on the suspicion of fraud. And under the proviso the Collector and Naval Officer, as well as the Court, are authorized to judge whether the difference proceeded from accident or mistake; and not from an intention to defraud the revenue. Under the act of 1818, it is made the

k 6 Vol. Danes Ab, 591. 593, cases there cited.

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