Brewster v. Gelston

11 Johns. 390

• Court: New York Supreme Court
• Decided: August 15, 1814
• Status: Published

Opinion

Yah Ness, J.

delivered the opinion of the court, By the 91st section of the act of congress for the collection of duties, (passed the 2d of March, If99,) it is enacted that “ all fines, penalties, and forfeitures, recovered by virtue of this act, (and not, otherwise appropriated,) shall, after deducting- all proper costs and charges, be disposed of as follows: One moiety shall be for the use of the United States, and be paid into the treasury thereof by the collector receiving the same; the other moiety shall be divided between, and paid in equal proportions to the cohector, and naval officer of the district, and surveyor of the port wherein the same shall have been incurred, or to such of the said, officers as there may be in the said district; and in districts where only one of the aforesaid officers shall have been est oh fished, the said moiety shall be given to such officer; provided. nevertheless, that in all cases where such penalties, fines, ana fot feitrwes, shall be recovered in pursuance of information given to such collectors, by any person other than the naval officer or surveyor of the district, the one half of such moiety shall be gi-en to such informer, and the remainder thereof shall foe -.tisposed of between the collector, naval officer, and survey- or or surveyors, in manner aforesaid: Provided also, that where any fines, forfeitures, and penalties, incurred by virtue of this act, are recovered in consequence of any information given by any oB/cer of a revenue cutter, they shall, after deducting all proper costs and charges, be disposed of as follows: One fourth part shall be for the use of the United States, and paid into the treasury thereof, in manner as before directed; one fourth part for the officers of the customs, to be distributed as herein before set forth, and the remainder thereof to the officers of the cutter, to be divided among them agreeably to their pay.”

The present claim, I presume, is founded upon the last pro»' viso. Whether the same information is not contemplated by both these provisos is uncertain ; neither is it very -material to the decision of this cause, in the view I have taken of it.

The information to be given by an officer of a revenue cutter must be of such a nature as to conduce to a final condemnalion. It must be such as, in the first instance, to lead to, and, perhaps, justify a seizure, and the commencement of a suit; and if such suit eventuates in a condemnation, the officers are entitled to their share. I do not apprehend that it is required that this information must consist of such facts or circumstances as, independently of all other evidence, would be sufficient- to produce a condemnation, though it ought to be such as essentially to contribute thereto.

With these general principles for our guide, let us see whether the verdict of the jury, in the three different caces of ítír» feitures, is against the weight of evidence or not; and I will consider them in the order they were presented by the counsel for the defendant. First, as to the Hiram;

The plaintiff, in the morning of the same day, early in December, received information which led Mm to suspect that this vessel was a smuggler, as appears by the uncontradicted testimony of Ferris and Lockwood; and this information was communicated to him before Luke Mead’s arrival at the city of New-York; upon this the plaintiff went in search of this vessel in his boat, accompanied, among others, by Andrew Mead, and, in the evening, having found the Hiram, he seized her, and, on search, goods were found concealed on board or" her, in such a manner as to leave no doubt that she was engaged in some unlawful trade or business. Upon what ground, or upon whose testimony she was condemned, does not appear in the case. Laying Luke Mead’s communication to the collector out of the ease, there can be no doubt that she was finally forfeited to the United States, in consequence of the information given by the plaintiff. In opposition to this, it appears that the first information given to the collector was by Luke Mead, who, together with Andrew Mead, went in search of her. They, however, supposed the offending vessel to be the Phxbe, Merrit master, and not the Hiram, Seely master. Luke Mead appears soon to have gone off on other business, leaving Andrew Mead to prosecute the search. Andrew Mead’s presence, when the vessel was seized, cannot, in any way, prejudice the rights of the plaintiff, nor admit him to participate in the forfeiture, particularly, as he declared, when the plaintiff discovered the Hiram, that she was not the vessel he was in search of. There Is some further testimony in support of Luke Mead’s claim, all of which wag submitted to the jury. The question is, whether the jury were not justified in concluding that the condemnation Was had in consequence of the information given by the plaintiff, rather than that given by Luke Mead. This was a question °f facb and though I am unable to say on which side the weight of evidence lies, the jury have found in favour of the plaintiff; and this is not a case where it would be proper for the court to interfere.

If the information communicated by Mead had been followed up by a seizure of the vessel, and a condemnation had ensued, he would have had a right to a share of the forfeiture. The only fact which he disclosed to the collector, after all, was, that he had seen this vessel land goods at Byram Point. This, of itself, would not have been enough, perhaps, even to authorize a seizure. It amounts to more, but not a great deal more, than the information given by Ferris to the plaintiff. Both Mead and the plaintiff proceeded upon suspicion; and the plaintiff having seized the vessel, and then possessed himself of information more unequivocally showing that the Hiram was a smuggler, by the detection of the concealed goods, I think, upon the whole, his right to participate in the proceeds of this forfeiture is entitled to a preference over that of Mead. Next, as to the Magistrate:

After a careful examination of the testimony, I cannot discover that the plaintiff has a colour of right to any portion of the proceeds of this vessel and her cargo. That he gave any information, in consequence of which this vessel was either seized or condemned, cannot be pretended. It has been said that it may be inferred from the circumstances that some such information was acquired while Squires was on board of her, but there is no foundation for any such inference. After Squires boarded the ship, he went down into the cabin, and soon after he and the captain, with the ship’s papers, went ashore and repaired to the custom-house, where, according to the testimony of Schenclc, the information was obtained which led to the final condemnation of the ship and cargo. The only thing which affords even a pretext for this claim is, that the officers and crew seized this vessel. But the mere naked seizure of a vessel by the officers of a revenue cutter, does not give any right to a share of the forfeiture.

The 97th, 98th, and 99fch sections of the duty act, show for what purposes revenue cutters are provided, and prescribes the duties which their officers are to perform. The objects for whish they are provided, (97th sec.) are stated to be, “ for the better securing the collection of the duties imposed on goods, &c. and to be employed for the protection of the revenue, &e. &e. The officers (99th sec.) are declared to be officers of the customs, and to be subject to the directions of the collectors, Sec. Their duties, in the same section, are, among others, declared to be, that they shall “ go on board all ships and ves» seis, &c. and search and examine the same, and every part thereof,” &c.

From the testimony of Sckenck and Sickles, it appears that the Active went in pursuit of the Magistrate, by order of the defendant, who had a right to send her on this service, and whose directions it was the duty of the officers to obey.' As one of the custom-house officers, and by direction of his superior, he found this vessel, and stopped her ; and for this he Is not, by the act of congress, entitled to any part of the forfeiture. The officers of the Active did nothing but what was in pursuance of their ordinary and appropriate duty, for which they receive a compensation from the government.

Lastly, as to the Liberty:

The circumstances which led to the seizure of this vessel, are shortly these. The defendant entertaining suspicions that her crew intended to run away with her, ordered her to be watched for some time. Their suspicions increasing, he ordered Squires to unbend her sails, and carry them ashore, which was accordingly done. On a Sunday night, during a violent snow storm, her fasts were cut, and she went off, and run upon Governor's Island in the course of the night, and bilged. Thus far the plaintiff had no concern in this transaction. Not long after the ship left the wharf some person informed Sckenck, the surveyor of the port, of it, who immediately, as it was proper he should do, took measures to stop and bnng her back. For this purpose, he went on board the Active, and applied to Gilpin, the only officer on board, "who refused to stir, until he had seen either Squires, the first lieutenant, or the defendant, and went ashore avowedly for the purpose of consulting with those gentlemen»

While he was gone, the surveyor went to the defendant’s house, where he met Gilpin, as he was coming out of it. Whether the officers of the revenue cutter were bound to obey Schcnck is immaterial; for there is every reason to believe, that the defendant himself directed the Active to pursue the ship in question. Gilpin set out, but saw nothing of the Liberty that night; but in the morning, on returning to the city, she was seen aground upon Governor's Island; and soon after, Squires, with two men from the Active, and two from Van Beuren's cutter, the Protector, and in company with Van Beuren, went on board of her, and seized her.

According to Van Beuren's testimony, he was prepared to go on board the Liberty before he saw Squires; and it is very questionable whether he ought not, in fact, to be considered the seizing officer, or at least as much so as Squires. On what grefund this vessel was condemned does not appear.

The mere seizure of the ship, much less assisting in bringing her cargo ashore, confers no right to a portion of the forfeiture. These, as has already been remarked, are the usual and proper duties of the officers of the revenue cutters. In all the testimony, too, we look in vain for any information given by the officers of the Active, in “ consequence of which this forfeiture was recovered.” Not a single fact was known or discovered by them leading to such a result, directly or indirectly. Indeed, it appears to me, that the verdict in both the last two causes is wholly unsupported by the' evidence.

The defendant appears, in both cases, to have received “ information” from other persons, which led to the seizure and final condemnation of the ships, and their cargoes; and those persons only are entitled to share the proceeds with the United States.

The result is, that there must be a new trial; and as it may be material that another point, made by the defendant’s counsel, should be put at rest by the court,-1 proceed briefly to consider it. I allude to the effect of the settlement of this transaction by the defendant with the treasury department. These vessels and their cargoes were all condemned in the district court of New-York, and sold by the marshal.

The 90th sec. of the duty act, after directing that all ships, &c. condemned, &c.. shall be sold at public auction by the marshal, provides, that the marshal shall pay the amount of such sales, deducting all proper charges, to the clerk of the court directing such sale, to be by him {after deducting the charges allowed by the court,) paid to the-collector of the district. By the 39th sec. it is made the duty of the collector, to cause suits to be brought for all infractions of the act, and prosecuted to effect ; and he is 66 authorized to receive • from the court within which such trial is had, or from • the proper officers thereof, She sum or sums so recovered, after deducting all proper charges io be allowed by the said court and on receipt thereof, the collector shall pay and distribute the same, without delay, according to law, and transmit, quarter-yearly, to the treasury,; an account of all monies received by him for fines, penalties, .and forfeitures, during such quarter/5 From these provisions -of the act of congress, it will be seen, that the collect^ received the net proceeds of these vessels and cargoes, a?F the. costs and charges having been allowed and taxed by the court 5 Shat he is made the agent for all parties who have an interest in the forfeiture, and is to pay and distribute the money when received, and that he is to account at the treasury, quarter-yearly, for all the money received for fines. I am persuaded that it Is enough to state the case, to show that the settlement made at fche treasury ought to have been received as a prima facie evidence, at least, of its fairness and correctness. This, however, would not form a ground for a new trial, as the plaintiff offers 6o remit the sum which ought to have been deducted 5 the amount being stated in the case.

There must be a new trial, with costs, to abide the event of the suit.

New trial granted.