UNITED STATES V. MORRIS, 23 U. S. 246 (1825)

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U.S. Supreme Court

United States v. Morris, 23 U.S. 10 Wheat. 246 246 (1825)

United States v. Morris

23 U.S. (10 Wheat.) 246


The Secretary of the Treasury has authority under the Remission Act of 3 March, 1797, c. 361 [lvii] to remit a forfeiture or penalty accruing under the revenue laws at any time, before or after a final sentence of condemnation or judgment for the penalty until the money is actually paid over to the collector for distribution.

Such remission extends to the shares of the forfeiture or penalty to which the officers of the customs are entitled, as well as to the interest of the United States.

Quaere whether an execution upon a judgment obtained in the district Court of Maine could run into and be executed in the Southern District of New York.

In a plea of justification by the marshal for not levying an execution, setting forth a remission by the Secretary of the Treasury of the forfeiture or penalty on which the judgment was obtained, it is not necessary to set forth the statement of facts upon which the remission was founded.

This was an action brought against the defendant in the court below, as Marshal of the Southern District of New York, for a misfeasance in neglecting to proceed on a venditioni exponas issued out of the District Court of the United States for the District of Maine requiring him to sell the goods and chattels of Andrew Ogden, Abraham K. Smedes, and Thomas C. Butler which he had levied upon by virtue of certain executions issued against them in favor of the United States on a judgment recovered in the said District Court of Maine and which goods and chattels remained in his hands for want

Page 23 U. S. 247

of buyers, according to his return on said executions. The misconduct or neglect of duty alleged against the Marshal was that he did not sell the property so levied upon according to the command of the writ, but delivered the same up to the defendants discharged from the execution. The declaration stated the judgment to have been recovered in the September term of the court in the year 1817 for $22,361.75 damages, and which, in part, to-wit, in the sum of $11,180.87, remained in full force, not reversed, paid off, or satisfied to the plaintiffs, and that execution to that amount remains to be done. The venditioni exponas, as was alleged, was put into the hands of the marshal on 13 August, 1819.

The pleadings in the cause show that Andrew Ogden, of the City of New York, in or about the month of June in the year 1813, imported into Portland, in the District of Maine, certain goods and merchandise in the brig Hollen, which vessel, as well as the goods, belonged to him. These goods, together with the brig, were thereupon seized as forfeited to the United States on the ground that the goods had been imported in that vessel in violation of the nonintercourse acts then in existence. The goods and vessel were libeled in the District Court of Maine on 6 July, 1813, and on the 19th of the same month were delivered up to Andrew Ogden, after having been regularly appraised, upon his having executed, together with Abraham K. Smedes, and Thomas C. Butler, a bond for their appraised

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value. The vessel and goods were afterwards, on 27 May, 1817, condemned as forfeited to the use of the United States. And such proceedings were thereupon had that in the following September term of the court, a judgment was entered upon the bond of appraisement for $22,361.75, with costs.

The defendant, Morris, pleaded the general issue and a special plea in justification that the forfeitures had been remitted by the Secretary of the Treasury, setting out in haec verba two warrants of remission which were duly served upon him before the return day of the venditioni exponas, and averring a compliance on the part of the defendants with all the terms and conditions required by the warrants of remission. All which were duly set forth in the return on the venditioni exponas before the commencement of the present suit.

To this special plea a replication was filed stating in substance that at the time of the forfeiture, seizure, and condemnation of the brig Hollen and the goods imported in her, and also at the time of their condemnation and the entering up of the judgment on the bond for their appraised value and of the issuing of the several writs of execution, and at the time of the making and issuing the said warrants of remission and of the service thereof on the defendant, &c., Isaac Ilsley, and James C. Jewett were the collector and surveyor of the port of Portland, and as such entitled to one-half of the said forfeiture, and that the said several executions

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were issued for their benefit, and solely to collect the said sum of $11,180.87 for their own separate use, and that the defendant had notice thereof when the said several writs of execution were delivered to him to be executed, setting out, also, two endorsements on the execution, one signed by the District Attorney of Maine, notifying the defendant that the execution was for the benefit of the said collector and Surveyor and directing the Marshal to collect the same by their order. The other was signed by the collector and surveyor, requiring the marshal to collect the execution forthwith and deposit the money agreeably to the command of the writ and notifying him that the property in the execution was in them and directing him to receive orders from them and from no other person whatsoever in whatever related to the said execution. And it was then averred that the present suit was for the purpose of enabling the collector and surveyor to recover their damages for the injury they had sustained by reason of the misfeasance of the defendant in the declaration mentioned, and not for the benefit, use, or behoof of the said plaintiffs.

To this replication the defendant demurred specially and stated the following causes of demurrer:

(1) For that the replication is a departure from the declaration, in this that the declaration proceeds upon a cause of action in favor of the United States; whereas the replication proceeds upon a cause of action in favor of the said Ilsley and Jewett, &c.

(2) For that the

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replication discloses no lawful and sufficient authority for the said I. and J. to prosecute the said action against the said T.M., &c., and in the name of the United States.

(3) For that the declaration proceeds upon the ground that the several writs of execution therein respectively mentioned were issued upon a judgment obtained for the use of the United States, and therefore, according to the act in such case made, &c., might lawfully run and be executed in any other state or territory of the United States than the said District of Maine in which the said judgment was obtained. Whereas the replication discloses the fact that the said judgment was not obtained for the use of the said United States, but for the use and benefit of the said I. and J., and, therefore, could not run and be executed in any other state, &c.

(4) That the suit is prosecuted in the name of the United States, by an attorney, on record, other than the District Attorney of the United States for the Southern District of New York.

A joinder in demurrer having been filed, judgment was given for the defendant in the court below and the cause brought by writ of error to this Court.

Page 23 U. S. 281

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