the claim of forfeiture on the part of the government. The St. Jago de Cuba, 9 Wheat., 409.

$25. Property when forfeited by acts of persons other than owners.- A forfeiture for the embezzlement of wines, etc., under section 5 of the act of April 20, 1818, is incurred only by the act of the owner, and not of a mere stranger or the inspectors of the revenue. Six Hundred and Fifty-one Chests of Tea v. United States, 1 Paine, 499.

§ 26. The spirit of the revenue laws is not to create a forfeiture of property, except for acts of the owner attended with fraud, misconduct or negligence. Ibid.

§ 27. A capture made by citizens of the United States of property belonging to the subjects of a country in amity with the United States is unlawful, and in case of such unlawful capture, the property of the lawful owner cannot be forfeited for a violation of the revenue laws of the United States by the captors, or by persons who have rescued the property from their possession. The Bello Corrunes, 6 Wheat., 152.

§ 28. Under a piratical capture, the property of the original owners cannot be forfeited for the misconduct of the captors in violating the municipal laws of the country where the vessel seized by them is carried. The Josefa Segunda, 5 Wheat., 338.

§ 29. The owner of goods cannot forfeit them by an act done without his consent or conrivance, or that of some person employed or trusted by him. Peisch v. Ware, 4 Cr., 347. § 30. The acts of April 18, 1818, and May 15, 1820 (3 U. S. Stat. at Large, 432, 602), which provide that the ports of the United States shall be closed against every British vessel coming from a port closed against the United States, and that every vessel so excluded which shall enter a port of the United States shall be forfeited, apply only to a voluntary entry by the act of the owner or master of the vessel, or of their agents. The Waterloo, Bl. & How., 114. § 31. Hence, an entry by a derelict vessel, brought in by salvors, without the consent of her owner or master, or of their agents, does not work a forfeiture under those acts. Ibid.

§ 32. Ignorance of law will relieve from forfeiture, when. The act of March 3, 1855, regulating the carriage of passengers in steamships and other vessels, and imposing penalties and punishments for contravention, is made applicable to ship abroad in sixty days in Europe. and six months in other ports of the world, and requires notice of the act to be given in all foreign ports through the department of state. Held, that where such notice had failed to be given in such foreign port, and the owner or master of a vessel had thus unconsciously offended, it was a proper case for remission of forfeiture and for pardon of the master. The Passenger Ship Law,* 7 Op. Att'y Gen'l, 489.

§ 33. The embargo law was passed December 22, 1807. A vessel cleared from a southern port January 15, 1808, and that evening the collector received the information of the passage of the law, and gave public notice of it. It appearing that the owners or master of the vessel were ignorant of the passage of the law, prior to her sailing, and the vessel having been seized for the violation, it was held no good cause for forfeiture, and she was restored. The Ship Cotton Planter, 1 Paine, 23.

§ 34. Repeal of law while action pending thereunder.- If the law under which the sentence of condemnation was pronounced be repealed after sentence in the court below, and before final decree in the appellate court, no sentence of condemnation can be pronounced, unless some special provision be made for that purpose by the statute. Yeaton v. United States, 5 Cr., 281.

§ 35. A mere penalty never vests, but remains ́executory; and there can be no vested right in it until it has been reduced to a judgment. Hence, if an action brought for a penalty created by statute is pending at the time of the repeal of such statute, it cannot be further prosecuted. Union Iron Co. v. Pierce, 4 Biss., 327.

§ 36. The fourth section of the act of congress, approved February 12, 1793 (1 U. S. Stat. at Large, 302), entitled "An act respecting fugitives escaping from justice, and persons escaping from the service of their masters," is repealed, so far as relates to the penalty, by the act of September 18, 1850 (9 Stat. at Large, 462), entitled “An act to amend, and supplementary to, the above act." Therefore, where an action for the recovery of the penalty prescribed in the act of 1793 was pending at the time of the repeal, such repeal is a bar to the action. Norris v. Crocker, 13 How., 429.

$37. Embargo act - Vessel only, not cargo, may be seized. The authority given in the eleventh section of the embargo act of April, 1808 (2 Stat. at Large, 499), to collectors of the customs to detain any vessel ostensibly bound with a cargo to some other port of the United States, whenever in their opinion the intention is to violate or evade any of the provisions of the embargo acts, extends only to the seizure of the vessel. Slocum v. Mayberry.* 2 Wheat., 1. § 38. The owner has a right to the cargo, and if withheld from him by an officer he may maintain replevin therefor in a state court. Ibid.

§ 39. Violation of registry acts.- A transfer of a registered vessel of the United States, to a foreign subject, in a foreign port, for the purpose of evading the revenue laws of the foreign

country, with an understanding that it is to be afterwards reconveyed to the former owner, works a forfeiture of the vessel, under the sixteenth section of the ship registry act of December 31, 1792, unless the transfer is made known in the manner prescribed by the seventh section of that act. A registered vessel which continues to use its register after such a transfer is liable to forfeiture under the twenty-seventh section of the act, as using a register without being actually entitled to the benefit thereof. The Margaret, 9 Wheat., 421.

$ 40. Fraudulent intent, when necessary to incur forfeiture.- To subject goods to forfeiture, for a false valuation, it must be accompanied by a fraudulent intent and design. United States v. 14 Packages of Pins, Gilp., 235.

§ 41. Courts will not inflict penalties for such violations of the penal laws as are unintentional. The Brig William Gray, 1 Paine, 16.

§ 42. Under a libel against a vessel as forfeited for removing timber from public lands in Florida, in violation of a federal statute, it was held that the forfeiture could not be enforced except upon averment in the libel, and proof, that the acts charged as a public offense were done by the master of the vessel wilfully, or with knowledge of their culpability. The Schooner Cherokee,* 12 N. Y. Leg. Obs., 33.

§ 43. It was a proper instruction to the jury that, under an information filed against goods suspected of being fraudulently imported, they were not restricted in the condemnation of the goods to any entered goods which they found to be undervalued; but that they might find either the whole package or the invoice forfeited, though containing other goods correctly valued, provided they should find that such package or invoice had been made up with intent to defraud the government. Buckley v. United States, 4 How., 251.

§ 44. No one incurs the penalty under section 4 of the act of congress of 1793. for hindering or obstructing an arrest, who does not act knowingly. Driskill v. Parrish, 3 McL., 631; 10 L. Rep., 395.

§ 45. Penal statutes not authorizing indictments have never been considered within the rule of the criminal law, that no man is punishable unless he has been guilty both of a criminal act or omission, and a criminal or unlawful intent. United States v. Thomasson, 4 Biss., 99.

§ 46. Forfeitures for piracy.—Under the act of congress of March 3, 1819, to protect the commerce of the United States, and punish the crime of piracy, any armed vessel may be seized and brought in; or any vessel, the crew whereof may be armed, and which shall have attempted or commited any piratical aggression, search, restraint, depredation or seizure upon any vessel, and such offending vessel may be condemned and sold, the proceeds whereof to be distributed between the United States and the captors, at the discretion of the court. Harmony v. United States, 2 How., 210.

§ 47. Duties paid on false valuation no protection against forfeiture. If invoices of goods were fraudulently made by a false valuation to evade or defraud the revenue, the fact that they were entered, and the duties having been paid or secured at the custom-house in New York upon these invoices, was no bar to the information for the forfeiture of the goods to the United States. It can never be permitted, that a party who perpetrates a fraud upon the custom-house, and thereby enters his goods upon false invoices and false valuations, and gets a regular delivery thereof upon payment of such duties as such false invoices and false valuation require, can avail himself of that very fraud to defeat the purposes of justice. Wood v. United States, 16 Pet., 342.

§ 48. There can be but one penalty for the same act, in hindering an arrest of one or many fugitives from labor, under the act of congress of 1793; and so of harboring one or many at the same time. Driskill v. Parrish, 3 McL., 631; 10 L. Rep., 395.

§ 49. A person who has been convicted and punished by fine and imprisonment for smuggling goods on shore, in violation of the provisions of the act of August 30, 1842, is not liable to an action to recover the penalty imposed by the statute of March 2, 1799, for landing them without a permit, the act complained of in the two cases being the same. United States v. Hoffman,* 4 N. Y. Leg. Obs., 8.

$ 50. Penalty, when waived. The receipt of dog tax after suit brought is a waiver of the penalty. Boswell v. Washington, 2 Cr. C. C., 18.

$51. Where a seaman has misconducted himself and is discharged, but has been afterwards received again on board, his services accepted, and his wages allowed in his account, such misconduct cannot be alleged as a ground of forfeiture against him, though the shipping articles contain a clause that the re-instating of an offending seaman shall not be a waiver of the forfeiture. Lang v. Holbrook, Crabbe, 179.

$52. Any right may be waived, and, where that right is a severe penal forfeiture, a waiver will be considered with favor to the offender. Ibid.

§ 53. Limitations.- Under the consular act of 1803, the penalty of $500 for not depositing the ship's register with the consul, on arrival in a foreign port, must be sued for within two

years, the limitation prescribed by the act of 1790, it not being a revenue law within the meaning of the act of 1804. Parsons v. Hunter, 2 Sumn., 419.

§ 54. The provisions of the thirty-first section of the act of congress of April 30, 1790, by which prosecutions on penal statutes are limited, is general in its provisions, so that they extend to penalties imposed after as well as before the act, and also to actions of debt, as well as to informations and indictments. Adams v. Woods, 2 Cr., 336.

§ 55. The two years' limitation of suits for penalties contained in the thirty-second section of the crimes act of April 30, 1790 (1 U. S. Stat. at Large, 119), is repealed by implication by the fourth section of the act of February 28, 1839 (5 U. S. Stat. at Large, 332), which extends the time five years. Stimpson v. Pond, 2 Curt., 502.

$56. Forfeiture strictly construed. The rule that provisions for forfeiture are regarded with disfavor and construed with strictness, and that courts of equity will lean against their enforcement, is true when applied to cases of contract, and the forfeiture relates to a matter admitting of compensation or restoration; but there can be no leaning of the court against a forfeiture which is intended to secure the construction of a work, such as the building of a railroad, in which the public is interested, where compensation cannot be made for the default of the party, nor where the forfeiture is imposed by positive law. Farnsworth v. Minnesota & Pacific Railroad Co., 2 Otto, 49.

§ 57. A statute of Connecticut requires the president and secretary of each corporation to make an annual certificate showing the condition of the affairs of the corporation, as nearly as the same can be ascertained, on the 1st day of January or July next preceding the time of making such certificate, stating the amount of paid capital, the cash value of its credits, the amount of its debts, and the name and number of shares of each stockholder, which certificate it is required shall be deposited on or before the 15th of February or of August, with the town clerk, who shall record the same. The statute also provides that such an officer, whether president or secretary, if he intentionally neglects or refuses to comply with that requirement, and perform the duty therein specified, shall be liable to an action founded on the statute for all debts of such corporation contracted during the period of such neglect or refusal. Held, in an action brought against the president of a corporation, that the statute is penal and must be strictly construed; that an officer was not liable for debts due and unpaid during the period of his neglect or refusal to comply with the terms of the statute, if they were actually contracted before such neglect, etc. Steam Engine Co. v. Hubbard, 11 Otto, 188.

$58. Equity never lends its aid to the enforcement of a forfeiture or penalty, or anything in the nature of either. Marshall v. Vicksburg, 15 Wall., 146.

$59. A court of equity may not decree a forfeiture. It will relieve against a penalty, but not against stipulated damages. Goesele v. Bimelar, 5 McL., 223.

$ 60. relief will be granted, when.- Where the articles of agreement of a private stock company provide for the forfeiture of the stock of stockholders in case of non-payment of assessments, but provide no express mode by which the forfeiture is to be established, a court of equity will relieve where the forfeited stock has not been distributed among the shareholders or sold as provided by the articles, no rights of property having become vested in such case. Walker v. Ogden, 1 Biss., 287.

§ 61. Fine for contempt of court.- Where a fine was imposed by a federal court for contempt of court, and the offending party committed until the fine should be paid, held, upon application of the prisoner for discharge on the ground that he was unable to pay the fine, (1) that the court would not exercise or claim the power invoked unless the president should disclaim all right and power as a part of his constitutional prerogative to grant relief by pardon; (2) that the case was not beyond the pardoning power of the president, because the court in imposing the fine directed it to be paid to the plaintiffs towards the reimbursement of their expenses in the suit; (3) that if the right to the fine should be regarded as a vested private right in the plaintiffs in the suit, existing in the shape of a judgment, the court would have no right to discharge it. In re Mullee, 7 Blatch., 23.

§ 62. Miscellaneous.- Wine and spirits saved from a wreck and landed are not liable to forfeiture because unaccompanied with such marks and certificates as are required by law; nor because they were removed without the consent of the collector, before the quantity and quality were ascertained, and the duties paid. Peisch v. Ware, 4 Cr., 347.

§ 63. If a vessel be driven by stress of weather to the West Indies, and the cargo there detained by the government of the place, this is such a casualty as comes within the exception of " dangers of the seas" in the condition of an embargo bond. United States v. Hall, 6 Cr., 171.

§ 64. Under the third section of the act of January 9, 1808, the return cargo is not affected with forfeiture. The Brig Short Staple and Cargo, 1 Gall., 104.

§ 65. Forfeiture under the act of March 15, 1820, attaches to the cargo on board at the time

the vessel enters or attempts to enter our ports; and not to any cargo subsequently taken on board, though on board at the time of the seizure. United States v. An Open Boat, 5 Mason, 232.

§ 66. The statute of 1794, prohibiting the fitting out any ship, etc., for the service of any foreign prince or states, to cruise against the subjects, etc., of any other foreign prince or states, does not apply to any new government, unless it has been acknowledged by the United States, or by the government of the country to which such new state belonged. And a plea which sets up a forfeiture under that act, in fitting out a ship to cruise against such new state, must aver such recognition, or it is bad. Gelston v. Hoyt, 3 Wheat., 246.

$67. Under the eighth section of the coasting act of February 18, 1793, a coasting vessel is nor forfeited for proceeding on a foreign voyage, if such vessel has not actually left the port from which she intended to proceed on a foreign voyage. The forfeiture does not attach until the vessel has quitted such port, with an intent to proceed on such voyage. Schooner Friendship and Cargo, 1 Gall., 45.

§ 68. The clerk of a paymaster in the navy is a "person in the naval forces of the United States" within the meaning of the act of March 2, 1863, section 1 (12 Stat. at Large), and hence is not liable to the penalty provided in the third section of such act for those persons not in the military or naval forces who shall steal or embezzle "any money or property

of the United States." United States v. Bogart, 3 Ben., 257.

§ 69. The statute of 1857 prohibits the importation of indecent or obscene articles, prints, etc., and makes any "invoice or package" of imported goods containing such articles liable to forfeiture, the indecent articles to be destroyed and the others to be sold. An information was filed against a case of stereoscopic slides as being "indecent and obscene articles," praying that the same might be condemned under the statute and destroyed. The jury found that the case contained fifty-nine stereoscopic slides that were indecent, but that the rest were not indecent or obscene. Held, that under the pleadings only the fifty-nine articles could be condemned, and that the remainder must be acquitted: that the verdict that the case contained the two kinds of slides did not warrant a condemnation under the above law, as the court had no judicial knowledge that a "case" was always a "package." United States v. One Case of Stereoscopic Slides, 1 Spr., 467.

$70. A provision in the law or constitution of a state that "there shall be no imprisonment for debt" should be construed to refer to debts arising upon contract express or implied, and hence not to extend to and prohibit imprisonment upon a judgment for a statute penalty. United States v. Walsh, 1 Abb., 66; Deady, 281.

§ 71. An agent appointed by the secretary of the navy for the preservation of timber on the public lands of Florida informed of and seized quantities of timber which had been removed from such lands by trespassers. The timber had been hewn into beam pieces for ship-building before its seizure. It was libeled, condemned and appropriated by the United States. The agent claimed one-half of the value of the timber so seized and condemned, as informer, under the act of March 2, 1831 (4 Stat. at Large, 472). Held, that the timber in question in its improved condition was as much the property of the United States as it was before the trespassers took it into their possession; that no right was acquired in the timber by the wrong-doer in whose possession it was found by the agent, capable of being forfeited, and hence the improved value of the timber was not a penalty or forfeiture incurred under the provisions of this act. Thistle v. United States,* Dev., 131.

§ 72. The tenth section of the Virginia act of December 21, 1792, provides that "it shall not be lawful for any person to export," etc., "any cask of flour marked condemned by an inspector, on pain of forfeiting," etc. The fifteenth section of the same act provides that "if any person, after any cask of flour shall be branded 'condemned,' shall unpack and repack," etc., "shall forfeit and pay," etc. Held, that the word "condemned" must be branded on the cask or it is neither within the fifteenth nor the tenth section of the act. Cloud v. Hewitt,* 3 Cr. C. C., 199.

§ 73. The United States cannot be regarded as trustee for officers who, if the penalty in a forfeiture case had been collected, would have been entitled to a share of it. United States v. Morris,* 1 Paine, 209.

§ 74. Wines, the produce of France, imported into the United States before the non-intercourse act, re-exported to a Danish island, there sold to a merchant of that place, and thence exported to New Orleans during the operation of that act of congress, were liable to forfeiture under that law. The Schooner Hoppet v. United States, 7 Cr., 389.

$75. Spirits, wines and teas are not subject to seizure, under the forty-third section of the collection law, which declares, that "if any chest," etc., "shall be found in the possession of any person, unaccompanied with such marks and certificates, it shall be presumptive evidence that the same is liable to forfeiture," unless the certificates and marks are both wanting. 651 Chests of Tea v. United States, 1 Paine, 499.

§ 76. If a defendant has incurred a forfeiture, and seeks to avail himself of a defense granted to him by a subsequent law, to which he was not entitled at the time when the act, for which the penalty is given, was performed, he must take it subject to such terms and conditions as the legislature, at the time it passed the beneficial law, or at any future time, might please to prescribe. United States v. Hall, 2 Wash., 366.

$77. The penalty of not less than $100, provided in the fifth section of the act of August 29, 1842 (5 U. S. Stat. at Large, 544), for the offense of marking the word "patent” on unpatented articles, is a penalty of $100 and no more. Stimpson v. Pond, 2 Curt., 502.

§ 78. The words of a law imposing a forfeiture or penalty shall not be construed to embrace a case not within the parts of the law which prohibit the act done, or direct the performance of an act by the omission of which the penalty or forfeiture is incurred. United States v. Twenty-four Coils of Cordage, Bald., 502.

§ 79. A marshal of the United States who pays to his deputies and assistants, in taking the census, less than the funds, or their equivalent, which he may have received from the government for that purpose, is liable to a penalty of $500, under the act of March 3, 1839. United States v. Patterson, 3 McL., 53.

§ 80. The law which is in force at the time of the entry and presentment of the invoice is that which must control the proceedings and forfeiture in consequence thereof. Forfeitures,* 2 Op. Att'y Gen'l, 358.

§ 81. Where a lease of a wharf provided for a penalty "in case the right to collect wharfage or rents should be defeated permanently through the instrumentality or with the aid of the mayor and council of the city,” held, that the penalty was not incurred by a quarantine embargo laid with the consent of the lessee, nor by an ordinance of the city which he himself had caused to be passed because he thought it would be beneficial to him, although both resulted in his injury. Marshall v. Vicksburg, 15 Wall., 146.

§ 82. The fines mentioned in the second section of the act of March 3, 1801 (2 Stat. at L., 115), are such only as accrued by law, in whole or in part, to the government. United States v. Simms,* 1 Cr., 252.

II. ACTIONS AND PROCEDure.

SUMMARY - Where no form of action is provided, § 83.— Debt proper at common law, § 84.— Under steamboat act of 1852. §§ 85, 86.— Jurisdiction, § 87.- Qui tam actions; complaint; signing by district attorney; undertaking for damages, §§ 88, 89.

§ 83. When an act is declared to be unlawful by statute, and a penalty is prescribed, a person who violates the law may be proceeded against by indictment, or by an action of debt, if no mode of suing for the penalty is specially provided by the statute. United States v. Bougher, SS 90-92.

§ 84. At common law, debt is the proper action to recover a pecuniary penalty imposed by statute. Ibid.

§ 85. The forty-first section of the steamboat act of 1852, declaring that "all penalties imposed by this act may be recovered in an action of debt by any person who will sue therefor," does not preclude the United States from suing for a penalty in an action of debt. Ibid.

86. The right to sue under the provisions of the steamboat act of 1852, as an informer, being limited to a person, the United States cannot sue in that character. Ibid.

§ 87. The ninth section of the judiciary act of 1789, relating to the jurisdiction of the district court, establishes the right of the United States to sue in the district courts for penalties where the matter in dispute amounts to $100 exclusive of costs. Ibid.

§ 88. Actions to recover a forfeiture or penalty by an informer under sections 3490–3493, Revised Statutes United States, are qui tam actions, and the complaints need not be signed by the United States district attorney. Although the action is required to be brought in the name of the United States, and cannot be withdrawn or discontinued without the consent of the district attorney and the judge, it is still otherwise under the control of the informer. United States v. Griswold, §§ 93–96.

§ 89. In a qui tam action, brought by an informer to recover a forfeiture or penalty, the United States is so far the plaintiff that no undertaking to answer in damages for the arrest can be required by the defendant. Ibid.