As has been shown, this is a qui tam action. The statute authorizing it imposes no restraint upon the power of the party bringing it, except that he shall bring it in the name of the United States, and shall not dismiss it without the consent of its district attorney and the judge. Subject to these qualifications, he may proceed as if the action was in name as well as in fact his own, which certainly implies the right to select and employ counsel to commence and con

duct it.

$94. The complaint in a qui tam action may be subscribed by the attorney of the informer who sues.

The complaint being subscribed by attorneys of this court as attorneys for the plaintiff, the presumption is that they were employed by the person who brings this suit to conduct it. This being so, such attorneys are the attorneys of the plaintiff, and the complaint is duly subscribed by the attorney of the party plaintiff within the requirement of section 79 of the Oregon Civil Code, and is therefore not liable to be stricken out. When the statute authorized Dowell to bring and conduct this action in the name of the United States it necessarily authorized him to employ attorneys for that purpose, and thereupon the persons so employed became and are the attorneys of the United States for that purpose. The motion to discharge the defendant from the arrest, or, more properly, "to vacate the writ of arrest (see sec. 128, Or. Civ. Code), is based upon the assumption that by virtue of sections 914 and 915particularly the latter- the law of the state (sec. 107, Civ. Code) regulates and controls the allowance and issuing of a writ of arrest, and therefore the writ in this case was improperly issued, because there was no prior undertaking or affidavit as provided in said section 107.

§ 95. If a complaint in a qui tam action is verified by the affidavit of the informer, plaintiff, the defendant may be arrested upon it.

As to the affidavit, the complaint contains all the facts necessary to authorize an arrest, and it is verified by the oath of Dowell. Such a complaint is an affidavit, and may be used in the case whenever an affidavit as to such facts is required. In United States v. Walsh, 1 Deady, 293, which was an action upon a statute for a penalty, this court held: "Where the cause of action is sufficiently set forth in the complaint, and the cause of action and arrest are identical, there is no necessity for an additional or separate affidavit to authorize an arrest." Here the cause of action and arrest are identical, and the verified complaint, as to the facts stated therein, is an affidavit. Neff v. Pennoyer, 3 Saw., 292.

Before proceeding to consider the objection as to the undertaking, it is proper to state that section 915, supra, upon which counsel for the motion seems to rely, does not appear to apply to the case of an arrest. Briefly, it provides that plaintiffs in the United States courts shall be entitled to the remedies by "attachment or other process against the property of the defendant," allowed by the laws of the state for the courts thereof, such plaintiff first furnishing the preliminary affidavits or proofs and security required by such state laws. As will be seen, the operation of this section is confined to the remedy by attachment or other process - probably like process - only against the property of the defendant and not against his person.

§ 96. In a qui tam action the United States is so far the plaintiff that no undertaking to answer in damages for the arrest can be required by the defendant.

Section 914, supra, requires in effect that the mode of proceeding in this ac

tion "shall conform as near as may be" to the mode of proceeding in like cases in the state courts. This is a general direction, and only intended to secure uniformity in the practice in the national and state courts, in civil actions at law, as far as practicable. Indianapolis v. Horst, 93 U. S., 300. But when congress has specially prescribed the mode of proceeding it does not apply. Now, section 3492, having specially provided that the defendant in this action might be arrested, and held to bail by the district judge, without requiring the plaintiff, or any one for it, to give any undertaking or security for costs or damages, the most reasonable inference is that it was not intended that any should be given. Besides, it is a settled rule of construction, that the general words of a statute do not include the government or affect its rights, unless such purpose be clear and indisputable upon the face of the act. Jones v. United States, 1 N. & H., 383; United States v. Weise, 2 Wall. Jr., 72; Bright, Fed. Dig., 843. This was a well established rule of the common law, founded upon considerations of public policy, and, therefore, it was said, that an act of parliament did not bind the king, unless particularly named therein. 1 Black., 185. Under this rule, a statute of the state requiring a plaintiff to give an undertaking for costs and damages before procuring an arrest does not include the United States. The motions are denied.

§ 97. Jurisdiction of courts.- United States district courts have exclusive jurisdiction of forfeitures. Hall v. Warren, 2 McL., 332.

§ 98. The federal courts have exclusive cognizance of all seizures authorized by congress to be made on land or water for a breach of its laws, and may enforce by summary process the redelivery of the thing forfeited, in case the same has been taken by state authority out of the hands of a United States officer. Slocum v. Mayberry,* 2 Wheat., 1.

§ 99. The courts of the United States have an exclusive cognizance of questions of forfeiture upon all seizures made under the laws of the United States; and it is not competent for a state court to entertain or decide such questions of forfeiture. If a sentence of condemnation be definitely pronounced by the proper court of the United States, it is conclusive that a forfeiture is incurred; if a sentence of acquittal, it is equally conclusive against the forfeiture; and in either case the question cannot be again litigated in any common law forum. Gelston v. Hoyt, 3 Wheat., 246.

$ 100. state courts. In suits for penalties incurred under the act of congress of August 2, 1813 (2 U. S. Stat. at Large, 611), giving a moiety to the United States and the other moiety to the collector or informer, the state courts have jurisdiction. Stearns v. United States, 2 Paine, 300.

§ 101. The act of congress of August 2, 1813 (2 U. S. Stat. at Large, 611), giving to the state courts jurisdiction in certain specified cases of penalties, incurred under the laws of the United States, must be considered pro tanto a repeal of the judiciary act of 1789, whereby exclusive original jurisdiction of the same was given to the United States district courts. Ibid. § 102. — justice of the peace.- Fines, penalties and forfeitures, under by-laws of the corporation of Washington, D. C., not exceeding $50, are recoverable before a justice of the peace. Ex parte Reed, 4 Cr. C. C., 582.

§ 103.

chancery.—A court of chancery is not the proper tribunal to enforce a forfeiture, the remedy being at law. Horsburg v. Baker, 1 Pet., 232.

§ 104. Nature of action.— Actions for penalties, being founded upon the implied contract which every person enters into with the state, to observe its laws, are civil actions both in form and substance. Stearns v. United States, 2 Paine, 300.

§ 105. When debt will lie.-The action of debt lies for a statutory penalty, because the sum demanded is certain, but though in form ex contractu it is founded in fact upon a tort. The necessity of establishing a joint liability in such cases does not therefore exist; it is sufficient if the liability of any of the defendants be shown; judgment may be entered against them and in favor of the others, whose complicity in the offense, for which the penalty is prescribed, is not proved, precisely as though the action were in form as well as in substance ex delicto. Chaffee & Co. v. United States, 18 Wall., 516.

§ 106. An action of debt to recover a penalty is a "civil cause" within the meaning of the ninth section of the judiciary act, from which a writ of error lies from the district court to the circuit court of the United States. Jacob v. United States, 1 Marsh., 520.

§ 107. A fine or a penalty incurred by the breach of a by-law of the corporation of Washington, D. C., is a debt and recoverable as such. Ex parte Reed, 4 Cr. C. C., 582.

§ 108. At common law, debt is a proper action to recover a pecuniary penalty imposed by statute. United States v. Bougher, 6 McL., 277.

§ 109. When a penalty is given by statute, and no remedy for its recovery is expressly provided, debt will lie. United States v. Willets, 5 Ben., 220.

§ 110. Where a statute gives a penalty, and no particular remedy is prescribed for enforcing it, an action of debt may be brought to recover it. The debt to the government arises when the penalty is incurred by the commission of the act prohibited by the statute. In re Rosey, 6 Ben., 507.

§ 111. When qui tam action will lie.- In an action for a penalty under the Virginia act of December 21, 1792, “regulating the inspection of flour and bread,” it is not necessary that the United States should be nominally a plaintiff, as it may be recovered in an action qui tam. Cloud v. Hewitt,* 3 Cr. C. C., 199.

§ 112. A qui tam action will not lie for the penalty of the by-law of March 30, 1813, of the corporation of Washington, D. C. Washington v. Eaton, 4 Cr. C. C., 352.

§ 113. The eighth section of the act of February 28, 1799, in relation to prosecutions upon a penal statute, by an informer, contemplates an action in the name of the informer, as well as in the name of the United States, to the use, in whole or in part, of an informer. The Steamboat Planter, Newb., 262.

§ 114. By information. When a statute creates a new offense and affixes a specific pecuniary penalty, appropriating one-half thereof to the informer, it adopts by necessary implication those remedies which appropriately belong to the common informer, and by which alone he can prosecute for the same. And, although there be no informer, and the government is entitled to judgment for the whole, the action must be brought by information as though there were an informer, and not by indictment. United States v. Tilden,* 21 Law Rep., 598.

§ 115. By indictment or suit at law. In proceedings by libel against a steamboat to recover a penalty incurred under the act of congress of the 7th July, 1838, the corporation owning the boat appeared as claimants, and the decree was rendered that the owners of the steamboat forfeit and pay to the United States the sum of $500; and that the boat be sold, etc. Held, upon appeal, that the penalty of $500 could not be recovered from the owners in an admiralty proceeding by libel; that the mode of proceeding to recover the penalty from them was by suit or indictment, proceeded in according to the forms of the common law, as this was the mode of proceeding provided for in the eleventh section of the above act. Virginia & Maryland Steam Navigation Co. v. United States, Taney, 418.

§ 116. 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, 6 McL., 277.

§ 117. If a statute prescribes a particular mode of enforcing payment of a penalty it must be pursued, and indictment will not lie. United States v. Ellis, 1 Cr. C. C., 125.

§ 118. An indictment will not lie, under the Virginia act, for suffering gaming in the defendant's house, because the act has given an action of debt to the informer. United States v. Gadsby, 1 Cr. C. C., 55.

§ 119. Forfeiture of lands and franchises by legislative action. A forfeiture of an interest in lands and connected franchises, granted for the construction of a public work, may be declared by the state for non-compliance with the conditions annexed to their grant or to their possession, when the forfeiture is provided by statute, without judicial proceedings to ascertain and determine the failure of the grantee to perform the conditions. Where land and franchises are thus held, any public assertion by legislative act of the ownership of the state, after default of the grantee, such as an act resuming control of them, and appropriating them to particular uses, or granting them to others to carry out the original object, I will be equally effectual and operative. Farnsworth v. Minnesota & Pacific Railroad Co., 2 Otto, 49.

§ 120. Abatement of action.— At common law an action for a penalty abates on the death of the defendant. Jones v. Van Zandt, 4 McL., 604.

§ 121. Trial by jury.- In all cases of seizures which are not of admiralty cognizance, the claimants of the property seized as forfeited are entitled to trial by jury; and a provision in an act of congress that “the proceedings to enforce said forfeiture of said property shall be in the nature of a proceeding in rem in the circuit or district courts of the United States for the district where such forfeiture is made," cannot take away the constitutional right of claimants to trial by jury. United States v. 130 Barrels of Whisky, 1 Bond, 587.

§ 122. Pleading, practice and procedure. In an action of debt on a penal statute the existence of the statute on which based must be made in the declaration by direct allegation as matter of fact. The mere assertion of a conclusion of law, as that by force of a statute an action has accrued, is insufficient. United States v. Batchelder,* 9 Int. Rev. Rec., 97.

§ 123. An objection to the want of a seizure prior to the allowance of the libel is not properly a plea to the jurisdiction of the court, and is not waived by filing a claim. The Schooner Silver Spring, 1 Spr., 551; 17 Law Rep., 264.

§ 124. The institution of penal suits on behalf of the government by stipulation or compromise is an objectionable practice, and not looked upon with favor by the courts. United States v. Brig Henry, 4 Blatch., 359.

§ 125. In an action for the penalty for altering the inspector's marks on barrels of flour, it is necessary to set out the marks and how altered. Cloud v. Hewitt, * 3 Cr. C. C., 199.

§ 126. The rule relieving a defendant from the necessity of answering any allegation or interrogatory contained in the libel, which will expose him to any prosecution or punishment for crime, or for any penalty or any forfeiture of his property for any penal offense, extends to corporations as well as to individuals. Pollock v. Steamboat Laura, 5 Fed. R., 133.

§ 127. In an action under the statute of February 12, 1793, containing separate counts for harboring slaves and obstructing claimants, several penalties cannot be recovered for the same act, whatever may be the number of persons affected by the course of the defendent, nor can the same act be separated into distinct charges. Driskell v. Parish,* 10 Law Rep., 395.

§ 128. A libel for a statute forfeiture should substantially agree with the terms of the statute; otherwise it is bad. The Schooner Betsy, 1 Mason, 354.

§ 129. A warrant to recover the penalty of a by-law must name the plaintiffs by their corporate name, and must describe the offense with reasonable certainty. Barney v. Washington City, 1 Cr. C. C., 248.

§ 130. In an action for penalties given by statute the complainant must not only state the acts of omission or commission by which they are claimed, but that they were omitted or done contrary to the form of the statute in such cases made and provided. Briscol v. Hinman,* 10 Int. Rev. Rec., 53.

$131. If a declaration for a statute penalty conclude "against the form of the statutes," when it is founded on a single statute, it is good on error. Kenrick v. United States, 1 Gall.,

268.

§ 132. In an action or information to recover a fine or penalty under a statute, it is sufficient if the conclusion is contrary to the act of congress in such cases made and provided. United States v. Babson, 1 Ware, 450.

§ 133. In debt for the double value under section 3 of the embargo act, January 9, 1808, it is not necessary to allege the particular articles which composed the cargo; nor that the owner was knowingly concerned in the illegal voyage. Cross v. United States, 1 Gall., 26. § 134. An information for a statute forfeiture should conclude against the form of the statute, or at least refer to some subsisting statute authorizing the forfeiture. A mere conclusion of an information against the form of a statute will not cure the defect of material averments to show that a forfeiture has accrued. The Sloop Nancy, 1 Gall., 67.

§ 135. If two penal offenses be described in one count, and one penalty only sought, after verdict the declaration will be supported. Smith v. United States, 1 Gall., 261.

§ 136. In debt for the penalty of double value, under the embargo act of January 9, 1808, it need not be averred in the declaration that the vessel and cargo had not been and could not be seized for the offense. Ibid.

§ 137. In debt for a penalty brought in the name of "the United States of America," if the verdict find that the party is indebted "to the United States," without saying “of America," it is sufficient. Ibid.

§ 138. If a declaration on a penal statute do not conclude against the form of the statute, it is a fatal omission on error. Alleging "whereby, and by force of such act," the defendant had forfeited, etc., is not sufficient. Sears v. United States, 1 Gall., 257.

139. It seems that a declaration on a penal statute need not specify the uses to which the forfeiture inures; and if it allege it to be "to the uses expressed in said statute," where several statutes have been before mentioned, and no one of them is the statute which expresses such uses, it is not fatal on error.

Ibid.

§ 140. A conclusion of a declaration of debt for a penalty under a statute, "against the law in such case made and provided," is not a conclusion against the form of the statute, and is bad on error. Smith v. United States, 1 Gall., 261.

$141. - parties.- Under section 4610, Revised Statutes United States, which provides that "all penalties and forfeitures imposed by this title, for the recovery whereof no specified mode is herein before provided, may be recovered, with costs, in any circuit court of the United States, at the suit of any district attorney of the United States or any person by in

formation to any district attorney," etc., held, that a civil suit for the penalties imposed by section 4609, Revised Statutes United States, was properly brought in the name of the United States. United States v. Kellum, 19 Blatch., 372.

§ 142. An action for a forfeiture or penalty must be brought in the name of the government, and not of a private person, unless some other mode is expressly provided by statute. Matthews v. Offley, 3 Sumn., 115.

§ 143. 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. United States v. Bougher, 6 McL., 277.

144. The acts of congress of the 27th of February, 1801 (2 Stat. at L., 103), and 3d of March, 1801 (2 Stat. at L., 115), did not enable the United States to sue in its own name to recover a penalty for an offense committed in that part of the District of Columbia ceded by Virginia, which by the law of Virginia went to the informer. United States v. Simms,* 1 Cr., 252.

§ 145. The penalty imposed by section 11 of the copyright act of February 3, 1831 (4 U. S. Stats. at Large, 438), for putting the imprint of a copyright upon a work not legally copyrighted, and given by the act to " the person who shall sue for the same," cannot be recovered in the name of more than one person. Ferrett v. Atwill, 1 Blatch., 151; 4 N. Y. Leg. Obs., 215.

$146. burden of proof— Evidence.- Where the onus probandi is thrown on the claimant, in an instance or revenue cause, by a prima facie case made out on the part of the prosecutor, and the claimant fails to explain the difficulties of the case, by the production of papers and other evidence, which must be in his possession or under his control, condemnation follows from the defects of testimony on the part of the claimant. The Luminary, 8 Wheat., 407.

§ 147. In proceedings under a penal statute the right to a decree of forfeiture must be made out strictissimi juris. No presumptions or conclusions are allowable, unfavorable to the claimants, unless based on clear and indisputable facts, and sustained and demanded by the positive and explicit requirements of the law. United States v. Steamboat Henry C. Homeyer, 2 Bond, 217.

§ 148. One who asserts that another has forfeited a legal right secured to him in due form of law, for the purpose of defeating his enjoyment of that right, must make out the point clearly and satisfactorily, because the law does not favor an abandonment, and throws upon the party who seeks to obtain the benefit of a forfeiture the burden of proving it beyond all reasonable question. McCormick v. Seymour, 2 Blatch., 240.

$149. In suits for penalties or forfeitures, where a prima facie case is made out by the government, the burden of explanation is thrown upon the claimant. The Governor Cushman, 1 Biss., 490.

§ 150. A party who offers an excuse for violating a penal statute must make out the vis major under which he shelters himself, so as to leave no reasonable doubt of his innocence. The Brig Struggle, 9 Cr., 71.

§ 151. The fourth section of the act of 1820, referring to the act of 1818, and that referring again to the revenue acts of the United States, as to the mode of suing for and recovering penalties and forfeitures, does not, by implication, adopt the seventy-first section of the collection act of 1799, as to the onus probandi being thrown on the claimant on seizures under the act. The Schooner Abigail, 3 Mason, 331.

§ 152. No individual should be punished for a violation of law which inflicts a forfeiture of property, unless the offense shall be established beyond a reasonable doubt. This is a rule which governs a jury in all criminal prosecutions, and the rule is no less proper for the government of the court when exercising a maritime jurisdiction. United States v. The Brig Burdett, 9 Pet., 682.

§ 153. On an information for forfeiture of goods, subject to ad valorem duty, the appraisement of the public appraisers is a necessary and preparatory proceeding, and is prima facie evidence. United States v. Fourteen Packages of Pins, Gilp., 235.

§ 154. An informer who receives one-half the penalty on conviction is, notwithstanding, a competent witness. United States v. Patterson, 3 McL., 299.

§ 155. An officer of the customs who has assisted in the seizure of goods for violation of the revenue laws is a competent witness on a suit for the forfeiture of such goods. United States v. Twenty-five Cases of Cloths, Crabbe, 356.

392