feitures created by statute are given at large to any common informer; or, in other words, to any such person or persons as will sue for the same; and hence such actions are called popular actions because they are given to the people in general. Sometimes one part is given to the crown, to the poor, or to some public use, and the other part to the informer or prosecutor; and then the suit is called a qui tam action because it is brought by a person qui tam pro domino rege, etc., quam pro se ipso in hac parte sequitur.'" 3 Black. Com. 4th Eng. Ed. (Kerr) 149. In the year 1576 (18 Eliz. c. 5) parliament passed an act entitled "An act to redress disorders in common informers,” which commences as follows: "For redressing of divers disorders in common informers, and for better execution of penal laws, be it enacted that every informer upon every penal statute shall exhibit his suit in proper person, etc., and that none shall be admitted or received to pursue against any person or persons upon any penal statute but by way of information or original action, and not otherwise." This act carefully regulates all such informations and actions, and by sections 6 and 7 suits upon penalties given to any certain person, or body politic or corporate, and suits by any officer who has been used to maintain such suit, are excepted from its operation, leaving it in fact to apply only to popular actions; or, as it is expressed in the statute, suits upon penalties “limited or granted generally to any person that will sue." The legislature of New York passed a very similar act for the regulation of suits on penal statutes. St. 3 Feb. 1788. It is entitled "An act to redress disorders by common informers, and to prevent malicious informations." By the tenth section its operation is restricted to suits where the penalty is by statute given to "any person suing for the same." N. Y. Laws, J. & V. 188. In his History of the English Law, 509, Crabb says, speaking of the time of Elizabeth: "Owing to the number of penal statutes which now existed, and the encouragement which they held out to needy persons to bring informations for the sake of the forfeitures, two statutes were made in this reign, namely in the eighteenth and thirty-first years of this queen, for the purpose of

regulating this troublesome description of people, and in some instances inflicting corporal punishment on such persons, if convicted of malicious or oppressive proceedings. Among other things, compounding informations on penal actions--that is, taking any money or promise from the defendant without leave of the court, by way of making a composition with him not to prosecute-subjected the offender to a penalty of £10, two hours standing in the pillory, and to be forever disabled from suing such popular action. On the subject of these informations it is worthy of remark that no prosecution could be brought by any common informer after the expiration of a year from the commission of the offence." These instances are surely sufficient to show that the plaintiff in a popular action, whether prosecuting by information or by original writ, was an informer within the well-understood meaning of that word. The word seems clearly to include such a plaintiff, also, as it is used in the act of congress of February 28, 1799, which provides in section 8 "that if any informer on a penal statute, and to whom the penalty or any part thereof, if recovered, is directed to accrue, shall discontinue his suit or prosecution, or be nonsuited," etc., he shall be liable for certain fees. 1 St. 626. In its origin the word "informer” may have meant only one who sues by way of an information; but, as is seen by the statute of 18 Elizabeth, this was not the only mode of suing for penalties, and in time, certainly, if not originally, a party so suing in whatever mode was known as an informer. The word also, no doubt, in some of its applications, includes a person who lodges information with a government officer which leads to a suit brought by the government itself. It is so used in the customs revenue laws. But that the word includes also the plaintiff in a popular action is very evident from the authorities cited above. Nor does it seem to me that the reference to the share of the informer in this proviso has any important bearing on this question. When the whole penalty, as in this case, goes to the informer his share is the whole. It is not a misuse of the word, even if intended to apply to this class of informors. There is no statute which has been cited, or which I have discovered, which

in any respect discriminates in favor of or for the greater protection of this class of informers. On the contrary, the statute of 18 Elizabeth and the New York act of 1788 show that this very class of informers has been regarded as the least entitled to favor, and as requiring in a greater degree than any other class stringent legal and legislative regulation. And it would be clearly a violation of that principle of public policy which governs this subject-matter to give this statute a strained construction for their benefit, or to base an inference that they were intended to be excepted out of its beneficial operation upon any expressions of intention in their favor so inconclusive as are contained in section 5294.

Taking the whole statute together, then, I think it subjects all pecuniary penalties to the secretary's power of remission, provided the informer's claim shall not have been actually determined by the court. The power was therefore rightfully exercised in this case. Where the suit is by the United States, though prosecuted partly for the benefit of the informer, the secretary has power to discontinue it. In this case the warrant of remission does not purport to order the discontinuance of the suit, and probably it is proper that it should not do so, because it is the suit of a private party; but the court is bound to give effect, in some proper way, to the remission which the secretary had the power to make. The precise question involved in this case seems to have been decided by Judge Blatchford, in the case of The Twilight, in December, 1875. In that case, after issue joined in a suit for a similar penalty, the secretary remitted the penalty on certain terms, "subject to the decision of the court as to whether the plaintiff is an informer under section 5294 of the Revised Statutes, and the forfeiture incurred under section 4465 of said statute is remissible by the secretary of the treasury." It appears by the record in that case that, after hearing the parties, the court made an order perpetually staying libellant's prosecution of the suit. As no opinion was filed, nor any briefs, it may be true, as claimed by the libellant's counsel, that the points made in this case for libellant were not presented to the court in that case. As the amount

claimed is large, I think it is better, in view of a probable appeal, that an order be entered giving the claimant leave to file a supplemental answer, setting up the remission as a defence to the suit.

The libellant has filed exceptions to the answer of the claimant, a corporation, which appeared and defended as owner of the steam-boat. Two causes of action are stated in the libel-First, taking on board on one trip 280 passengers in excess of the number allowed by the certificate; and, secondly, taking on board on another trip 275 in excess of that number. The answer, while admitting the allegations of the libel as to the number the vessel was allowed to carry by her certificate, neither admits nor denies the allegation as to the number taken on board in excess of that number, and leaves the libellant to prove the allegations in that behalf, insisting that the claimant is not required to answer further on the ground that its answer "might and would tend to subject it to a penalty or forfeiture." To this part of the answer the libellant excepts, and now insists that the claimant must admit or deny the fact alleged. I think the case is within the thirty-first admiralty rule, which is as follows: "The defendant may object by his answer to answer any allegation or interrogatory contained in the libel which will expose him to any prosecution or punishment for a crime, or for any penalty or any forfeiture of his property for any penal offence." It is argued that this rule is designed to protect a party against his admission of a penal offence being used. against him as a party to a criminal or penal prosecution in some other suit or some other court. Possibly this was the prominent point had in view when the rule was framed, but I do not see why its terms are not equally applicable to a case where, in the very same suit, the defendant called on to answer will be subjected to the like evil consequence of admitting the fact. In reality, this rule seems to be but an application of the provision in the constitution of the United States which provides that "no person shall be compelled in a criminal case to be a witness against himself." Amend. 5. This provision applies to suits on penal statutes for a pecuniary

penalty only. Bank of Salina v. Henry, 2 Den. 155; 3 Den. 593; Curtis v. Knox, 2 Den. 341; Burns v. Hempshall, 24 Wend. 360; 4 Hill, 468; Cloges v. Thayer, 3 Den. 566; Parkhurst v. Lowlen, 1 Mer. 401.

This provision of the constitution is but an adoption as a constitutional guaranty of a principle of the common law, and as a rule of the common law it was as broad as the rule in admiralty referred to, extending to cases of a mere liability to pecuniary forfeiture. Same cases, 2 Story, Com. Const. § 1788, (4th Ed.) Another point taken in support of this exception is that the rule does not apply to a corporation, but only to a natural person. I see no valid reason for this distinction. The property of a corporation is equally under the protection of the constitution with that of a natural person. Its admission of a fact tending to criminate it would equally subject it to a judgment for a penalty or forfeiture, and thus deprive it and its stockholders of its and their property in the same manner in which the admission of a natural person would do, and that, too, in a proceeding which for this purpose is quasi criminal, and is within the meaning of the fifth amendment to the constitution of the United States, and certainly within the thirty-first admiralty rule. This exception is therefore overruled.

The libellant also excepts to the third article of the answer, which in brief sets up as a defence to the suit that the claimant received an oral permission to run upon excursions under Rev. St. § 4466, and to cary 500 passengers, which was more than she had on board, but that through negligence the permission was not given in writing. Rev. St. 4466 requires the permission for the extra number allowed to be in writing. Of course an unwritten permission is wholly immaterial and cannot avail as a defence. This exception is sustained.