bastant, describing himself as trustee Tagment for such supplies, can be ty up the wife s separate estate ef that she contracted the debt for intended to bind her separate

real estate to her husband in trust for the use
and benefit of two of her children, and appoint.
ed him executor, and made no provision for
the payment of debts.

The plaintiff was a retail grocer, and at dif-
[No. 156.]
ferent times from 1870 to 1875 delivered grocer-
Jan 9, 1885. Ordered for rearguies at the dwelling-house where the husband
Jan. 17, 1855. Resubmitted Mar. 2, and wife and their children resided together.
inded Apr. 13, 1885.
and received from the husband, in payment
therefor or in renewal of other similar notes,
promissory notes signed by him in this form:

FREAL from the Supreme Court of the of Columbia.

A facts of the case appear in of the court. See also the opineuron motion to set aside this andamiss appeal, post 296 J. Holdsworth Gordon, for appel

appeared for appellee.

Gray delivered the opinion of

appeal by the children and heirs FI Dodge, a married woman, decree ordering her real esfor the payment of debts alleged de from her to the appellee, upon by Lim in behalf of himself and who might come in, against the own right and as trustee and sewife, and against her children persona interested in the real es

F. Dodge, trustee for Fannie I. Dodge," payable to the plaintiff or order. At the time of the wife's death the plaintiff held four such notes payable at various periods not more than four months after date, for sums amounting in all to $2,171.61, and interest, and had delivered groceries to the amount of $120.10 for which no note had been given.

The personal property left by Mrs. Dodge was exhausted by a distribution made by her executor among her creditors, under a decree of the probate court by which the plaintiff received a dividend of $117 upon his claim.

It was further alleged in the bill, and denied in the answer of the children, that at the time of the giving of the four notes, and for several years before, Mrs. Dodge was indebted to the plaintiff in a large sum of money for groceries furnished to her on the credit of her sole and separate estate, for the maintenance of herself and her children and her husband, he being insolvent and entirely without property; and that ng facts were undisputed: By an she caused him for her to make and deliver the ment executed on January notes to the plaintiff; "all which said indebtMr Dodge (then Frances I. Chap-edness said Frances I. Dodge declared was ali her real estate to Mr. Dodge chargeable to her sole and separate estate, ad the same for her sole and sepa- upon the faith of which it was incurred, it hav benefit during her life, and so ing been represented to the plaintiff that her and the rents and profits thereof intention to fully secure the same by a proper bee for his debts, "or in any conveyance in trust had been from time before to his control or contracts, except her death prevented by her physical condition;" stent with the provisions of and that at the time of her death there was also and to permit her, by herself or due to plaintiff the sum of $120.10 on open aced by writing under her count for groceries furnished as aforesaid. and receive the rents and proftime accruing, and to dispose she might see fit for her own The plaintiff testified: "The groceries were d benefit; and if she should, by furnished to Mrs. Fannie I. Dodge. They [433° brown hand and seal and at- were furnished to the credit of Mrs. Dodge. ses, direct the leasing or The four notes were received in part renewal sale of the real estate or any part of other notes and a running grocery account, trustee should lease or sell and Mrs. Dodge is also indebted to me in the sum Accordingly, and collect the of $120.10 for groceries furnished upon her and invest them in his name faith and credit. These groceries were delivsuch manner as she might ered at her dwelling house. They were orrece, and hold the said invest-dered by Mr. Dodge and the servants, from time made for the same uses, trusts to time. Occasionally Mrs. Dodge was in the with the like power and au- store and ordered some. These articles were to the like limitations as furnished upon the credit of Mrs. Dodge be rederiared of and concerning the cause I expected Mrs. Dodge to pay me for and it was provided that them. I did not expect Mr. Dodge to pay for ding her coverture, might them because Mrs. Dodge was looked upon as and dispose of the estate or any being worth means, and Mr. Dodge not. Mr. she might see fit, and the Dodge never offered to pay me this account or and dispose of the same ac- any portion of it, or to give his own note for dfarber provisions were made any portion of it. He has handed me money a of the estate in case she which has been placed to the credit of the account. He has repeatedly told me that Mrs. Dodge had plenty of property to pay her debts, and would. He promised me security from Mrs. Dodge upon her real estate for this in. debtedness. I did not get it owing to Mrs.

The material parts of the testimony introduced by the plaintiff were as follows:

>

1976, the wife died, leaving ada will by which, by virtue Agintment reserved to her in lement, she devised all her

[434]

were the wife's debts, or that she intended t charge them upon her separate estate.

tract by her; and the husband's testimony wa more to legal conclusions than to specific facts

Dodge's death. I did not get a promise from
anybody else that I should have real estate se-
curity. Mrs. Dodge never personally promised The plaintiff's claims are for groceries supplie
to give me real estate security. I did not see her to a household in which the husband and wif
during the latter part of the transaction." The and their children were living together; an
plaintiff put in evidence a letter written to him upon promissory notes given by the husband
on January 10, 1876, by Mr. Dodge, saying: describing himself as trustee for the wife, i
"My wife is dangerously ill, and has been ever payment for groceries so supplied. The obli
since I saw you. Of course I can do nothing gation to pay for the supplies of the family i
yet as to the security promised you. As long ordinarily a debt of the husband. Promissor
as Mrs. Dodge lives, it requires her signature; notes given by the husband, though describ
if she dies, I am still trustee for her heirs, and ing himself as trustee for the wife, bind hin
can then execute a deed to you as such trustee." personally, and do not bind her estate unles
The husband testified that he was a clerk in he is clearly proved to have had authority t
an insurance office, and further testified: "The give them in her behalf. The terms of th
notes were signed 'F. Dodge, trustee for Fan- marriage settlement did not authorize the hus
nie I. Dodge,' because I had no property. I band to contract any debts on the wife's ac
had no property to give a note upon; I was count. The evidence introduced by the plaint
bankrupt. They were to be chargeable to her. iff consisted of the testimony of himself and o
They would not have been signed by me as the husband. The plaintiff's testimony wa
trustee unless it was for her and upon her re- rather to his own motives and reasons fo
sponsibility. I never accompanied the deliv-charging the goods to the wife, than to any con
ery of those notes with the declaration that they
were intended to bind her real estate-not that
I can remember. These notes were given with While the plaintiff testified in general term
the knowledge of my wife, under her general that the goods were furnished to the wife, and
authority. The amounts do not represent any upon her faith and credit, and gave, as his rea
indebtedness contracted by me. The articles son for furnishing them upon her credit, tha
furnished by Mr. Knowles were to eat. The he expected her to pay for them, and did no
family consumed them-my wife's family. expect the husband to do so because she wa
Her children and servants comprised that fam-looked upon as worth means and he was not
ily. These articles were purchased by her, and
on her credit. She made the exclusive arrange-
ments for their purchase through me, as trustee.
I was an inmate of the family during this time;
my salary furnished the marketing, and I gave
everything I had to the family. I could not
support the whole family. She furnished
medicines, wood and coal. I told Mr. Knowles
verbally that Mrs. Dodge was ill with paralysis;
that she could not be spoken to on business;
that when she got well I would get her to give
him real estate security if I could. I after-
wards wrote him the letter of January 10, 1876.
The promise given by me was in connection
with the notes held by Mr. Knowles. By
signing a note I could not make it binding on
real estate. These notes were not intended by
me to be binding upon her real estate any more
than suit at law would make them so. I only
meant that she had real estate enough to secure
any debt she was making."

At the hearing upon bill, answers, a general replication and evidence, the Supreme Court of the District of Columbia at special term entered a decree dismissing the bill. Upon appeal to the general term that decree was reversed, and it was adjudged that the plaintiff's claim, as stated in the bill, be a lien upon the real estate included in the marriage settlement. 1 Mackey,66. The children appealed to this court. This being an appeal in equity, the facts as well as the law are to be determined by this court. The opinion of the court below and the brief of the appellant deal principally with questions of the manner in which the wife could charge her separate estate, and of the effect of her exercise of the power of appointment as making that estate assets for the payment of her debts. But it is unnecessary to consider either of those questions, because we do not find in the record any satisfactory evidence that the debts sought to be enforced

and stated that the husband promised him se curity from the wife upon her real estate; ye the only specific facts to which he testified bearing upon the question who was his debtor were that the groceries were delivered at th dwelling house; that they were ordered by the husband and the servants, and occasionally by the wife; and that the husband had handed hin money which had been placed to the credit o the account. He did not testify to any ex press contract by the wife, and he admitted tha she never praised to give him security on he real estate.

The testimony of the husband was hardly more direct. He testified, indeed, that the good were purchased by the wife and on her credit and that she made the exclusive arrangement for their purchase through him as trustee; tha the notes word to be chargeable to her, and would not have been signed by him as truste unless it was for her and upon her responsibili ty; and that they "were given with her knowl edge, under her general authority." But he did not define or indicate the nature or extent of the general authority to which he referred; h did not testify that she ever promised to pay for the goods or expressly authorized him. t promise that she would pay for them; and he did testify that he never, so far as he could remember, accompanied the delivery of the notes with a declaration that they were intend ed to bind her real estate.

Such testimony is wholly insufficient to war rant a court of equity in decreeing that debts which are prima facie the debts of the husband should be considered as debts of the wife, and made a lien upon her separate estate.

Decree reversed and case remanded, with direc tions to dismiss the bill.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S. Cited-116 U. S., 144.

NORMAN H. POLLOCK, Appt.,

ட்

ZPORT STEAMBOAT COMPANY,
t of the Steamboat LAURA, etc.
The Laura," Reporter's ed., 411-417.)

by Secretary of the Treasury, of pen-
curred by a steam vessel-chen a bar
91former-practice of granting re-
fr my established to be questioned.

by the Secretary of the Treasury, of the Revised Statutes, of pend by a steam vessel for taking on A number of passengers, where red for before a suit in rem theperates against the vessel, by an trada efectual to destroy all Hability

ce of granting remissions of pecuniforfetures, by officers other than ned by statute and acquiesearly a century, as a valid exercise of vasion of the power of pardon Canstution to the President, is too

abued to be questioned.

[No. 191.]
30, 1885. Decided Apr. 13, 1885.

AZ from the Circuit Court of the UnitStates for the Southern District of New ed this case was filed in the District -7 12e appellant, to recover certain pento $5,661. The penalties in ng been remitted by the Secretary the court entered a decree disel. This decree having been peal, by the court below, the add to this court.

out complying with the terms of this title,
the owner shall be liable to the United States
in a penalty of $500 for each offense, one half
for the use of the informer; for which sum the
vessel so navigated shall be liable, and may be
seized and proceeded against by way of libel in
any District Court of the United States having
jurisdiction of the offense."

The libel in this case was filed by the appel-
lant to enforce a lien, in his favor, upon a steam
vessel of the class to which the above regula-
tions apply, for penalties amounting to the sum
of $5,661, which, it is claimed, accrued to the
appellant, as the person suing for them, by
reason of the transportation on that vessel at
certain specified times, of a larger number of
passengers than its certificate of inspection per-
mitted.

Before the trial in the District Court the owner of the vessel, a corporation which had intervened, filed an amended answer, setting up in bar of the further prosecution of the suit, a warrant in due form, by the Secretary of the Treasury, remitting to the appellee "all the right, claim and demand of the United States, and of all others whatsoever, to said forfeiture of passage money and penalties, on payment of costs, if any there be."

this warrant of remission was issued is in these
The provision of the statute under which
words:

"The Secretary of the Treasury may, upon
application therefor, remit or mitigate any fine
or penalty provided for in laws relating to
steam vessels, or discontinue any prosecution to
recover penalties denounced in such laws, ex-
cepting the penalty of imprisonment or of re-
moval from office, upon such terms as he, in [413]
his discretion, shall think proper; and all rights

further stated by the court.
Henry G. Atwater and Albert A. granted to informers by such laws shall be held

ape ant.

- Dennis McMahon, for appellee.

Harlan delivered the opinion
regulating the transportation
yeam vessels on such of the
Used States as are common high-
or are open to general or
tion-other than public ves-
y, vessels of other countries,
Froded in whole or in part
that every certificate of in-
10 Reamers carrying passen-
a ferry-boats, shall show the
ers of each class for whom
mmodations and whom it
lence and safety; that it
al to take on board a greater
faezers than is stated in the cer-
and that "for every viola-
the master or owner shall
wn suing for the same, to the Constitution investing the President with
of passage money and ten
Anger beyond the number power to grant reprieves and pardons for all
+29, 4400, 4464, 4465; Act of offenses against the United States, except in
16 tat, at L., 440, 454. These cases of impeachment." The argument ad
red to be a lien upon the of-vanced in support of this position, briefly stated,
****: 4469. Another section in is that the power of the President to grani
"If any vessel propelled pardons includes the power to remit fines, pen-
art by steam be navigated with-alties and forfeitures imposed for the commis

subject to the Secretary's power of remission,
except in case where the claims of any in-
former to the share of any penalty shall have
diction, prior to the application for the remis
been determined by a court of competent juris-
sion of the penalty; and the Secretary shall have
authority to ascertain the facts upon all such
applications, in such manner and under such
regulations as he may deem proper." Rev. Stat.
U. S., § 5294.

The costs having been taxed and paid into
court, the libel was, by order of the court, dis
missed. Pollock v. Steamboat Laura, 5 Fed.
Rep., 133. Upon appeal to the Circuit Court,
the decree was affirmed, that court concurring
with the District Court in holding that the re-
mission by the Secretary of the Treasury dis-
charged all liability for the penalties.
Laura, 19 Blatchf., 562.

# by Mr. Justice HARLAN,

The

The warrant of remission, it is contended by

the libelant, is without legal effect and should
have been disregarded, because the statute upon

which it rests is in conflict with the clause of

sion of offenses against, or for the violation of
the laws of, the United States; that such powe

[414]

[415]

is in its nature exclusive; and that its exercise, this court or in the Circuit and District Courts
in whatever form, by any subordinate officer of of the United States, involving the operation or
the government, is an encroachment upon the effect of such warrants of remission, was it
constitutional prerogative of the President.
ever suggested or intimated that the legislation
It is not necessary to question the soundness was an encroachment upon the President's pow-
of some of these propositions. It may be con- er of pardon-so far at least as it invested the
ceded that, except in cases of impeachment and Secretary of the Treasury, or other officers,
where fines are imposed by a co-ordinate de- with authority to remit pecuniary penalties
partment of the government for contempt of its and forfeitures. Indeed, the case of U. S. v.
authority, the President, under the general un- Morris, 10 Wheat., 246, may be regarded as a
qualified grant of power to pardon offenses direct adjudication in favor of the validity of
against the United States, may remit fines, pen- that part of the Act of 1797, brought forward
alties and forfeitures of every description aris- in all of the subsequent statutes upon the same
ing under the laws of Congress; and, equally, subject, which confers upon the Secretary the
that his constitutional power in these respects power to remit fines, penalties and forfeitures.
cannot be interrupted, abridged or limited by In that case-which involved the right to a
any legislative enactment. But is that power share in a forfeiture declared by statute the
exclusive, in the sense that no other officer can question related to the power of the Secretary
remit forfeitures or penalties incurred for the under that Act, after final sentence of condem-
violation of the laws of the United States? This nation and judgment for the forfeiture accruing
question cannot be answered in the affirmative under the revenue laws, to remit the forfeiture.
without adjudging that the practice in refer- The court held that the power could be exer-
ence to remissions by the Secretary of the cised under that Act at any time before the
Treasury and other officers, which has been ob- money was actually paid over to the collector
served and acquiesced in for nearly a century, for distribution. It was said: "The author-
is forbidden by the Constitution. That prac-ity of the Secretary to remit at any time before
tice commenced very shortly after the adoption condemnation of the property seized is not de-
of that instrument, and was perhaps suggested nied on the part of the plaintiff [the officer
by legislation in England, which, without in- claiming the forfeiture]; and it cannot be main-
terfering with, abridging or restricting the tained that Congress has not the power to vest
power of pardon belonging to the Crown, in- in this officer authority to remit after condemna-
vested certain subordinate officers with author- tion; and the only inquiry would seem to be
ity to remit penalties and forfeitures arising whether this has been done by the Act referred
from violations of the revenue and customs to." Evidently the court and the eminent coun-
laws of that country. Stat. 27 Geo. III., chap. sel who appeared in that case accepted it as a
32. See also Stat. 51 Geo. III., chap. 96, and 54 proposition not open to discussion, that the
Geo. III., chap. 171.
power of the President to pardon for offenses
did not preclude Congress from giving the
Secretary of the Treasury_authority to remit
penalties and forfeitures. Touching the objec-
tion now raised as to the constitutionality of
the legislation in question, it is sufficient to say,
as was said in an early case, that the practice and
acquiescence under it, "commencing with the
organization of the judicial system, affords an
irresistible answer and has indeed fixed the
construction. It is a contemporary interpreta-
tion of the most forcible nature. This practical
exposition is too strong and obstinate to be
shaken or controlled. Of course the question
is at rest and ought not now to be disturbed.”
Stuart v. Laird, 1 Cranch, 308. The same
principle was announced in the recent case of
Lithographic Co. v. Sarony, 111 U. S., 53 [bk.
28, L. ed. 349], where a question arose as to
the constitutionality of certain statutory pro-
visions reproduced from some of the earliest
statutes enacted by Congress. The court said:
"The construction placed upon the Constitu-
tion by the first Act of 1790 and the Act of
1802, by the men who were contemporary with
its formation, many of whom were members
of the convention which framed it, is of itself
entitled to very great weight; and when it is
remembered that the rights thus established
have not been disputed during a period of
nearly a century, it is conclusive." See also
Cooley v. Board of Wardens, 12 How., 315;
Martin v. Hunter, 1 Wheat., 304; Colvens v.
Virginia, 6 Wheat., 264.

By an Act passed March 3, 1797, 1 Stat. at
L., 506, the Secretary of the Treasury was au-
thorized to mitigate or remit any fine, penalty,
forfeiture or disability arising from any law
providing for the laying, levying or collecting
duties or taxes, or any law concerning the reg-
istering and recording of ships or vessels, or
the enrolling or licensing ships or vessels em-
ployed in the coasting trade or fisheries, or
regulating the same, if in his opinion the same
was incurred without willful negligence, or
fraudulent intention by the person or persons
subject to the same. He was also authorized
to direct a prosecution instituted for the recov-
ery thereof to cease and be discontinued upon
such terms and conditions as he deemed rea-
sonable and just. This Act expired by limita-
tion at a designated time. But by an Act
passed February 11, 1800, it was revived to
continue in force without limitation as to time.
2 Stat. at L.,7, chap. 6. From the adoption of the
Constitution to the present moment, Congress
has asserted its right by statute to invest the
Secretary of the Treasury and other officers of
the executive branch of the government with
power to remit fines, penalties and forfeitures
imposed for the violation of the laws of the
United States.* And in none of the cases in
*1 Stat. at L., 122, chap. 12; Id., 275, chap. 35; 2 Id.,
454. chap. 8. § 6; Id., 502, chap. 66, § 14; Id., 510, chap.
5, § 12; Id., 701, chap. 49, § 4; 3 Id., 92, chap. 1, § 14; Id.,
617, chap. 14, § 3; Id., 739, chap. 21, § 35; 9 Id., 593,
chap. 21,8 3:11 Id., 95, chap. 159, § 10: 12 Id., 257,
chap. 3. § 8; Id., 271, chap. 10, § 3; Id., 405, chap. 81,
4; Id., 737, chap. 76, § 1; 13 Id., 198, chap. 164, 8; 14
Id., 169, chap. 184, 863; 15 Id., 242, chap. 273, § 8; 16
Id., 179, chap. 185, § 9; 17 1d., 325, chap. 335, 316; 18
Id., 180, chap. 391, § 18; R. S. §§ 2858, 3001, 3078, 3115,
8220, 3412, 3461, 6292-5294.

148

It is however insisted that if the stat question is constitutional it cannot be con as giving the Secretary of the Treasu

114

ute in

strued ry the

to remit a penalty after a suit for its rehas been instituted by a private person. of this position we are referred to sauthorities, which, it is claimed, hold test of what may be done under the panion granted by our Constitution King of England could do, by virpardosing power, at the time of the from that country: and that he could pardon to the injury of a subject, , could not remit a penalty after apriate person to recover it. It is quite dated in United States v. Wilson, 7 Lat, since the power to pardon "had ed from time immemorial by the of that nation whose language is our to whose judicial institutions Tease resemblance, we adopt their 7 respecting the operation and effect of But that principle has no possible to the present case, for the statute the libelant proceeds and withbe would have no standing in court, *****. I terms, that "all rights granted to and the libelant is plainly of the ded to be described-shall be held the Secretary's power of remission, cases where the claims of any inthe share of any penalty shall have ed by a court of competent juristo the application for the remis penalty." If the libelant had, by suit, an inchoate interest in such that interest was acquired subject to of the Secretary to destroy it by a hed for before the right is ascerestablished by the judgment of the bermee below is affirmed.

v. State Bk., 96 U. S., 30 (bk. 24, L. ed. 647),
that Hartwell "was privy to the entire fraud
from the beginning to the end, and was a par-
ticipant in its consummation."

This case is stronger than that in 96 U. S. be-
cause it is found in this case that Hartwell did
actually know that the draft came from the
claimant's cashier and that he was to be "hurt"
by the refusal to let the funds go out of the sub-
treasury after the count.

As against the claimant, Hartwell's fraud was much grosser than in the former case. Although he had promised to return the money, and knew that Carter was relying on the funds to be returned to repay all the parties any moneys he should obtain, and was acting on such reliance, he and the chief clerk, Whittle, had decided not to let the money go out of the subtreasury.

Hartwell and Carter were acting together for a fraudulent purpose, and the knowledge and acts of each were the knowledge and acts of the other. Whether each actually knew all the details known to the other was of no consequence.

Lincoln v. Claflin, 7 Wall., 132 (74 U. S.,bk. 229; 19, L. ed. 106); Moore v. Tracy, 7 Wend., Skinner v. Merchants' Bk., 4 Allen, 290; Boaz v. Tate, 43 Ind., 60; Page v. Parker, 43 N.H., 363; Tappan v. Powers, 2 Hall (N. Ý.), 277.

A party coming late into a conspiracy is even responsible for the prior acts of the conspirators.

Den v. Johnson, 3 Harr. (N. J.) 88.

Hartwell requested Carter to obtain the funds to tide over the count, and solemnly promised to return them as soon as the count was over. It was clearly his intention that Carter should act upon his assurances in dealing with the parties from whom the funds came, and when the draft of the H. McKenney, Clerk, Sup. Court, U. S. State Bank was offered to him, he had notice

that the State Bank had acted upon Carter's representations that he was to have the funds. Any one for whom false representations were ATE NATIONAL BANK OF BOSTON, intended, and who was acting upon them, has a

Appl.,

UNITED STATES.

See B. C. Reporter's ed., 401–410.) Fraud-liability of United States.

by the connivance of a clerk in the treasurer of the United States, obtains from that office money 4nited States, and, to replace it, ey which he obtains by fraud rk having no knowledge of the the latter money was obtained, the are not able to refund the money to

brushed from U. S. v. State Bk.,
Le 647.)

[No. 229.]
Apr. 2, 1885. Decided Apr. 13, 1885.

REAL frm the Court of Claims.
The and facts of the case appear
of the court.

Ges. O. Shattuck and W. A. Mun

bed in this case, as in that of U.S.

by Mr. Justice HARLAN,

right of action.

Polhill v. Walter, 3 B. & Ad., 114; Langridge v. Levy, 2 Mees. & W.,519; S. C., 4 Mecs. & W., 337; Gerhard v. Bates, 2 El. & B., 476; Peek v. Gurney, L. R. 6 H. L., 377.

The same rule applies to a case of fraudulent concealment.

The United States is not in the position of a holder in good faith and for value. When their agent took the money from Carter, it had been a and was distinctly stated for what it was delivered, i. e., to be used as a counter and then returned. It was wrongfully withheld, and in violation of the agreement under which it was originally received. It was and is therefore held to the claimant's use.

Mr. S. F. Phillips, Solicitor-Gen., for ap

pellee.

Mr. Justice Harlan delivered the opinion of the court:

The appellant brought this action in the Court of Claims to recover from the United States the sum of $125,000, with interest from March 1, 1867. The petition having been dismissed, the question upon this appeal is as to the liability of the United States to any judgment in behalf of the appellant.

[401]