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Brewster v. Gelston.
ground, if the present was permitted to stand. If any thing was done by the officers of the revenue cutter to sustain the claim of the plaintiff, the commanding officer Lieut. Cahoone, would be most likely to know it, and stood in the best situation to give correct information on the subject. He states, that general instructions had been given by the Collector, to put a man on board of all vessels from St. Bartholomew's, bound to Amboy, and send them up to New-York. That he boarded the Rambler, on the 7th of March, 1812, before she came to the point of changing her course for Amboy. That he demanded the manifest, and perceived that the word New-London, as the place of the vessel's destination, had been recently erased, and the word Perth-Amboy substituted in the place. That CaptAdams, the master of the vessel, informed him, that she was originally bound to New-London, but he was then going to Amboy. That he received no information whilst on board the Rambler, nor did he discover any thing to excite suspicion, respecting the origin of the cargo ; or that any thing had been done in violation of the laws of the United States, except that she was from St. Bartholomew's. That he put a man on board of her, and ordered her to proceed to New-York, in compliance with the general order of the defendant as Collector. That he came up to New-York two or three days afterwards, and that neither Burnham nor Lovis, made any communication to him relative to the cargo or the proceedings of the Rambler.
And it is here to be observed, that no such communication could have been made to the plaintiff'; for it is in proof, that he was at this time absent on a visit to his friends on the Mohawk river. And besides, Burnham swears that he gave the first information to the Surveyor, Peter A. Schenck, within a day or two after the Rambler came up to New-York; and which appears from the testimony of Schenck, to have been on the 9th March, and which at that time was particularly
Brewster v. Gelston.
stated and reduced to writing by him, relative to the proceed. ings of the Rambler, and origin of the cargo. And Schenck agreed with Burnham and Lovis that they should remain here as witnesses, and paid them for their time. No information appears to have come from the officers of the revenue cutter, that at all contributed to the condemnation. The Rambler was not sent up to New York in consequence of any suspicion entertained by Lieut. Cahoone, but in compliance with the general order of the Collector, to send up all vessels from St. Bartholomew's, bound to Amboy. The alteration of the manifest excited no suspicion, nor does it appear that even this was communicated to the Collector until after information relative to the cargo was communicated by Burnham to Schenck. Whether the officers of the cutter were bound to obey the general order given by the Collector, or whether such order would have protected them, had the vessel been acquitted, is unimportant in the present case.
Lieut. Cahoone obeyed the order, and did what he did, in consequence of it. He did not pretend to act on any suspicion entertained by himself, for he expressly denies he had any. He neither did in point of fact, nor even claims to give any information of the least importance. The bill of exceptions sets forth, that it was stated, and admitted by the counsel of the plaintiff and defendant, that the brig and cargo were condemned upon the testimony of Burnham and Lovis. And that their information was first given to Schenck, cannot admit of a doubt; any agency afterwards of the plaintiff in procuring their attendance as witnesses, cannot in any point of view be information, within the sense of the law which will entitle the plaintiff to a portion of the forfeiture. The testimony of Smith, taken in connexion with the explanation of Lieut. Cahoone, and when contradicted in many respects by the other evidence, cannot be considered as entitled to much weight. And there certainly must be some mistake in Clark's
Brewster u. Gelstop.
testimony, when he states, that Burnham told him, he gave the plaintiff the first information of the proceedings of the Rambler, if he is to be understood as saying that Burnham told him he gave the information to the plaintiff before he did to any body else ; for plaintiff did not return from the Mohawk river until the 30th of March ; and it is in proof beyond contradiction, that Burnham communicated the information to Schenck on the 9th of March. From an attentive examination therefore of the evidence, I am unable to discover that the officers of the revenue cutter gave any information that led to the seizure, or that in the least contributed to the condemnation.
A new trial must accordingly be awarded, upon payment of costs.
CIRCUIT COURT OF THE UNITED STATES.
NEW-YORK, SEPTEMBER TERM, 1825, AT NEW-YORK.
Hon. SMITH THOMPSON, Associate Justice of the Supreme
THE UNITED STATES v. FOUR PART PIECES OF WOOLLEN
Proceedings by libel were instituted upon a seizure of goods, and a bond given
for their appraised value on the delivery of the goods to the claimant. Afterwards the libel was by amendment changed to an information, and the goods were condemned. On an application for an attachment against the obligors 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 stipu
lations in the bond might be enforced by attachment against the obligors. And the Court held, that it made no difference that the obligors were only sure
ties, and had not themselves received the goods. If the claimant is not a party to the bond, all the obligors are to be deemed
principals. The bond was taken in the District Court of New-York, and under the statute
dividing the District the proceedings were transferred to the District Court of the Northern District, and by a subsequent statute to this Court, where the condemnation took place. The condition of the bond was to pay the appraised value of the goods into the District Court, if they should be condemned in that Court: Held, that a condemnation in this Court had the same effect to forfeit the bond.
United States v. Four Part Pieces of Woollen Cloth.
THOMPSON, J. On the 19th day of July, in the year 1813, Joseph Kauman, John I. Labouisse, and Nicholas M. Delonguemare, entered into a bond to the United States in the penalty of four thousand four hundred and seventy-six dollars, reciting the seizure and libel of certain articles of merchandise in the District Court for the District of New-York; and that the goods in question in this case had, by consent of parties, been appraised at two thousand three hundred and eighty-eight dollars, and concluding with a condition, that the bond should be void if the obligors or either of them should pay into the District Court the said sum of two thousand three hundred and eighty-eight dollars, in case the said goods should, by sentence and decree of the District Court, be adjudged to be forfeited or condemned to the use of the United States, within twenty days after the sentence and decree should be pronounced. With some other stipulations in case of acquittal, not necessary here to be noticed.
At the last term of this Court a rule was granted, requiring the obligors in the bond to show cause why they should not comply with the stipulation contained in the condition of their bond. That rule has been served only upon Delonguemare, and he appears now, and presents his affidavit, alleging, that he was security only: that he never had the goods in his possession, or the proceeds thereof, and that he has no indemnity.
This appears to be a cause of long standing; and a brief statement of some of the leading circumstances attending it, may be necessary to a right understanding of the decision.
The libel was filed in April, 1813, as upon a seizure made on navigable waters, and the proceedings carried on according to the course of the admiralty. At this time the whole state of New-York was comprised within one district. The seizure having been made in the northern part of the state, it