This was an action brought by John D. Brez, executor of Paul A. Brez, against Edw. S. Stellwagon and George W. Warner, trading as Stellwagon & Warner, to recover the several sums of $17331% and $620, alleged to be due plaintiff by defendants under a sealed agreement made the third day of July, A. D. 1875. Paul A. Brez by this instrument, a copy of which was filed, agreed to furnish and send on consignment to the said Stellwagon & Warner watches and parts thereof, upon the following terms, viz:— under which the sheriff levied on certain personal property as the property of Wm. Lorenz. This property being claimed by Alvina Lorenz, wite of Wm. Lorenz, a sheriff's rule of interpleader was taken and made absolute, narr. and bond filed and a feigned issue framed; in the bond, Wm. Lorenz and one C. Hermann, Sr., became security for the forthcoming of the goods. The feigned issue was tried, and a verdict rendered in favor of Roth. The goods not being produced, a vend. exp. was issued by Roth on the judgment on the note, and returned "eloigned," whereupon suit was begun by Roth against Wm. Lorenz the sum of five thousand dollars at any one time, and are "(1.) Such consignments are not to exceed in amount and C. Hermann, Sr., as sureties in the inter- to be continued from time to time as sales are made and pleader bond, and judgment obtained for $118.30. hereinafter mentioned. Goods so consigned to be subA writ of fi. fa. on this judgment was brought | ject to recall at any time and to be returned in good order. into the sheriff's office, on Aug. 15, 1877, indorsed by a clerk in the prothonotary's office "no exemption." By virtue of this writ a levy was made upon a portion of the same personal property that had been levied upon under the original fi. fa. in the suit on the judgment note. The sheriff's deputy, declining to give Lorenz the benefit of the exemption law, which was claimed by him, sold the property levied on for $90.97. If the Court be of opinion that the sheriff ought to have given Lorenz the benefit of the exemption law, then judgment to be entered for the plaintiff, but if not then judgment to be entered for the defendant. Chas. Davis, for plaintiff. "(2.) All goods are to be accounted for at invoice prices shipment, except as to prices in cases of special agreein gold, net and free of all charges and commissions after ment, including fire insurance on stock, and such fire insurance is to be kept up for the full amount and the policies to be satisfactory to the said Paul A. Brez, and the loss, if any, to be payable to him, and all losses on borne by the said Stellwagon & Warner. said goods beyond those. covered by insurance are to be "(3.) The said Stellwagon & Warner hereby guarantee all sales of the goods so consigned, and are to make return thereof on the day the same are made, and to transmit the money or note or notes as received to the said Paul A. Brez. No sales are to be made whereof the time for payment is to exceed three months, except by special agreement with said Paul A. Brez, and all time sales are to be covered by note or notes, made or indorsed by purchasers and indorsed by the said Stellwagon & Warner, who are to pay the same at maturity should the makers fail to do so. "(4.) The said Stellwagon & Warner agree to confine The suit on the bond was a new suit, in which themselves in their purchases and sales as to watches or there was no waiver of exemption. R. C. Winship, for defendant. The waiver was a part of the original contract, and subsisted throughout all stages of the suit until the debt was paid. Bowman v. Smiley, 7 Casey, 226. The prothonotary, having indorsed "no exemption" on the fi. fa., the sheriff was justified in presuming that the exemption was waived. Com. v. McCoy, 8 Watts, 155. The defendant having suffered his wife to claim the goods, and having gone her security in the bond, was guilty of a fraud on the creditor, that precluded him from claiming the exemption. Strouse's Executor's v. Becker, 2 Wr. 192. C. P. No. 3. parts thereof, to the goods so consigned to them by the said Paul A. Brez, either foreign or domestic." With a copy of this agreement was filed a copy of defendants' returns of sales to the amount of $173310, and averments to the effect that the said Paul A. Brez during his lifetime had faithfully kept the agreement, that defendants had not performed the obligations and conditions therein recited, in that they did not account for the goods consigned to them at invoice prices, did not make returns of sales of the goods so consigned, and did not transmit the money, note or notes as received to the said Brez, but on the contrary are indebted to plaintiff as executor of said Brez for the proceeds of goods sold by them as per the return of sales rendered amounting to $17337 as also for the invoice price of goods still retained by them unsold after demand amounting to $620. The affidavit of defence set forth inter alia that the instruments filed were not within the affidavit Feb'y 1, 1879. of defence law. Brez v. Stellwagon. Affidavit of defence law-Instrument not within the act-Averments supplementing copy filed. Rule for judgment for want of a sufficient affidavit of defence. Hennershotz showed cause. The plaintiff has not filed any book entries made by Brez, but files instead the returns we made. These are not within the act. The aver ment must not go beyond the instrument filed | Smith has offered, through his agent, to pay the to fix liability. Francis E. Brewster, contra, cited— Sutton v. Base Ball Club, 4 WEEKLY NOTES, 90. C. A. V. Feby. 8, 1879. Rule discharged. C. P. No. 3. Feb'y 15, 1879. Ellis v. Donaghy. Practice-Judgment of Non Pros.-The narr. is in time if filed before the entry of judgment on the docket. Rule to strike off judgment of non pros. for want of a narr. The non pros. was entered on Jan. 29, 1879, more than a year after the action was commenced, and on the same day a narr. and rule to plead were filed. An affidavit in support of the rule averred that, at the time the affiant filed the narr. there was no judgment of non pros. entered in the docket. The non pros. was entered in the docket on the line above the entry of the narr. and rule to plead, but there was no direct evidence as to which was first filed. Wm. Mintzer (with him R. P. White), for the rule. Huntington v. Thomas. Bill of exchange-Accommodation acceptorEffect of tender by the drawer in relieving such acceptor. Rule for judgment for want of sufficient affidavit of defence. Assumpsit by holder against acceptor of a draft or bill of exchange for $2000, dated April 2, 1878, drawn by B. E. Smith to his own order, and indorsed by him. said sum of $1000 to plaintiff for the return of said draft, which offer was refused; that the agent was at the time prepared, ready and willing, to make the payment; and that plaintiffs knew at the time they took the draft that defendant was an accommodation acceptor. Cog. coram me in open Court this sixth day of May, A. D. 1878. "ABIGAIL NESTER. [L. S.] "Bail approved by the Court.' The affidavit of defence averred that the de does not appear to be approved by the Court, as required by the Act of Assembly in case of a recognizance, and is not signed by Alfred I. Dickinson, who is joined as defendant in this suit." fendant had paid $50 on account of the judgment; suggested that the instrument filed was not such as to entitle the plaintiff to judgment; The affidavit and supplemental affidavit of de- and "that the same does not acknowledge infence set forth, in effect, that the draft was ac-debtedness to the plaintiffs or to anybody, and cepted by defendant for the accommodation of Benjamin E. Smith, named as drawer, no consideration having been received for its acceptance; that the said draft was taken by plaintiffs in renewal of another similar draft, which plaintiffs took as collateral security for the sum of $1000 that was advanced by plaintiffs to the said Smith on the faith and security of said draft: that the interest was paid at the time of the advance; that upon the paper being protested plaintiffs requested said Smith to pay the costs of protest, which he did; that since the date of protest the said Greenbank, showed cause. The words "Bail approved by the Court" are a part of the printed form; the recognizance was not actually approved, and is therefore irregular. Act of June 16, 1836, 8 4, Purd. Dig. 634. Eichman v. Belvedere Bank, 3 Wh. 68. [THAYER, P. J. If the plaintiff chooses to ac cept without approval, is not the irregularity waived?] The law requires approval, and I do not think it can be waived. As the instrument stands, it is not a recognizance. Broadhurst, for the rule. The approval was waived, and it is not neces- THE COURT. Rule absolute, and judgment for plaintiff for $165.48, the amount appearing to be due after giving the defendant credit for the sum alleged to have been paid by him. U.S. Circuit Court- An information was filed by the United States attorney against nine trunks and one bag, containing principally silks alleged to be subject to duty as imports, and which were imported into the United States on board the steamship Russia, and landed without the permit of the collector or naval officer of the port, and without payment of duty; whereby, under the fiftieth section of the Act of Congress of March 2, 1799, they became forfeited to the United States. The information alleged that the goods were landed without permit, with intent to evade the payment of duties, and prayed the appropriate process that the goods might be condemned and the proceeds appropriated according to law. Subsequently, B. G. Bean filed a petition of intervention, claiming the goods, and answered and pleaded to the information that the goods and merchandise therein mentioned did not become forfeited in manner and form as alleged. A trial was had in the Court below, and a verdict rendered for the claimant, under the ruling of the District Judge that the Act of Congress of 18th July, 1866, did not apply to goods of this character, but only to goods whose importation was wholly forbidden, and that under the Act of 1799, the landing of these goods with passengers' baggage under a general permit, was not an unlading and delivery that subjected them Nine trunks, etc., Bean, claimant, v. The to forfeiture. This judgment was subsequently United States. Revenue laws-Smuggling-Information against goods-Evidence-Fraudulent intent-Burden of proof-When shifted to claimant. In proceedings for the forfeiture of goods, under the Federal Statutes against smuggling, the goods themselves are the defendants; and conversations had, and information given in regard to their illegal importation, in the absence of their owner and claimant, are properly ad reversed on error to this Court, Mr. Justice STRONG holding that the goods were forfeitable, under the Act of 1866, if they were shown to have been imported contrary to law, of which fact he said there was no doubt, under the evidence, and that under the proofs touching their transfer to the wharf from the vessel they were forfeitable under the Act of 1799. He further decided that the Act of 22 June, 1874, passed during the trial, which provided that there should be no forfeiture of the goods unless the jury were satisfied that there was an actual intent to defraud Where the evidence discloses that the claimant of goods seized as illegally imported, knew that his method of im- the Government, was applicable to the case; sayporting the goods was contrary to law, the burden of proofing that the Court was right in submitting to the is shifted from the Government to him, to show that he did not adopt that method for the purpose of evading a payment of the duties. missible in evidence. In an information filed by the Government against certain goods alleged to have been illegally imported with intent to evade the payment of duties, the owner of the goods having intervened as claimant, the officers who made the seizure were allowed to testify that they acted upon information communicated to them by third persons in the absence of the claimant, and also what the informa tion was: Held, that the evidence was properly admitted, the proceedings being directly against the goods and not against the claimant personally. jury to find whether such an intention existed, and that if it did, and the goods were imported contrary to law or unladen without a permit, the United States were entitled to a verdict, whether there was collusion between the claimant and the customs officers or not. On the second trial of the case the following facts appeared: Bean, the claimant, purchased in Europe the goods seized, and packed them in eight second-hand trunks which he bought there, and in one other trunk of his own; that the trunks were entered on the manifest of the steamer Russia, by which he was a passenger, as his own personal baggage. That no certified invoice was obtained by him of the goods, and Error to the District Court of the United States no declaration of the contents of the trunks was for the District of New Jersey. Semble, that information of this kind would be evidence as part of the res gestæ. law, then the Government is obliged to establish by positive proof to your satisfaction, that all the steps taken by him in the direction of their transportation were taken with a fraudulent intent, to wit, for the purpose of getting the merchandise into the country without the paying of duties. Verdict for the United States, and judgment of condemnation and forfeiture was subsequently entered thereon. The claimant, Bean, thereupon sued out this writ of error, assigning for error, inter alia, the admission of the testimony excepted to, as above, and the portions of the charge inclosed in brackets. Stanley, Brown, and Clarke, for the plaintiff in error. made by him. There was evidence that Bean | [You must commence your inquiry with this prowas a dressmaker in New York, and intended to position, that the importation of the goods was use the silks in his business. On the arrival of contrary to law. That much has been settled in the steamer at her dock in the port of New York, the case on the previous trial. Then if you are these trunks were placed, according to the usual of the opinion from the facts shown, that Mr. custom, with other passengers' luggage, on a por- Bean knew that his method of bringing in the tion of the dock set apart for the purpose of ex-merchandise was unlawful, the burden rests upon amination by the revenue officers, and that no him, to satisfy you by affirmative proof that he baggage could be removed from this part of the did not adopt this method for the purpose of dock without due examination and permission evading the payment of duties, but for some of the proper officers. It appeared that it was other and lawful purpose; as for instance, to customary for the inspector, after the examina- save freight, or to save time in the matter of tion of any particular trunk, and payment of transportation.] But if you are of the opinion duties, if any were found to be due, to mark that he was not aware that such a mode of bringing each trunk so examined with his initials, the in or unloading of the goods was contrary to number of his badge, and the word "passed." After the trunks in question were upon the dock, one of the inspectors marked them in this manner, and the trunks were then moved up the dock by the workmen on the pier to the pile of "passed" baggage. This was done after Bean had left the vessel, and by the direction of one Brackett, a special agent of the Treasury, who was on the dock watching these trunks. Bean not appearing, Brackett made seizure of the trunks, and took them to the Custom House. At this stage of the testimony Brackett was asked as to an inquiry made by himself of one Gross, an employé of the steamship company having charge of their dock, Bean not being present at the time. "What did you ask Mr. Gross relative to these trunks of Bean, and what reply did Mr. Gross make?" Objected to as hearsay, and that a statement of a third party, not shown to be connected with Bean, in his absence, was incompetent and irrelevant. Objection overruled, evidence admitted and exception. Ans. "I asked him if these trunks had been regularly passed, and he replied that they had been. I then ordered their seizure." Brackett, it appeared, had gone to the steamer to look for Bean, in pursuance of information which had been given at the office of the Special Agent of the Treasury. He was asked, on his examination, from whom he had obtained the information that these silks were to be brought on in the Russia, and what the information was. Objected to. Objection overruled and exception. The Court, NIXON, Dist. J., charged the jury inter alia, that [the law declared the goods to be forfeited under the circumstances of this importation, if they were satisfied that the claimant intended by what he did to bring into the United States these goods and merchandise without the payment of the duties which the statute imposed; and that it was a question of fact for them to decide whether the claimant adopted this method of importation to secure that result, or that he did it for the purpose of saving time and freight, intending tha the silks should be entered for the payment of duties after his arrival.] . A. D. Keasbey, contra Sept. 1878. THE COURT (MCKENNAN, Cir. J.), after stating the facts: The Court below permitted the United States to prove, by the officers who made the seizure, upon what previous information they acted and from whom that information was derived, and also by their informant, what he had told them, touching the proposed illegal importation of the goods. The conversations offered to be proved occurred in the absence of the claimant, and were objected to as hearsay, and it is now urged that the proof of them ought to have been excluded upon that ground. If the claimant were the subject against which the proceeding was directed, and was, therefore, necessarily a party to it, there might be force in the objection, as the reason of the rule which excludes hearsay evidence might be invoked in his favor. But he was a voluntary intervener, the goods themselves being the defendant and offender, if there was any offence, and subject to the punitive consequences of a violation of the law committed by any person in reference to them. In the United States v. 661 Bales of Tobacco, Weil and Co., claimants (24 Int. Rev. Rec. 79), Judge BLATCHFORD said: "If any person does so and so, in regard to goods, they are the Judge saying, "it was admissible under the decisions of the Supreme Court, not for the purpose of proving the body of the offence, but for the purpose of characterizing the intent with which a given act may have been done." forfeited. In all the statutes the merchandise is the United States v. 661 Bales of Tobacco (supra) personated, the merchandise is called the offender; and if any person does in regard to that merchandise-and, for the purpose of this case, I will limit it to any person lawfully connected with the merchandise-if any person does the forbidden acts, the merchandise is forfeited. It is not like an indictment in a criminal case, where personal guilt must be brought home to the individual, and where he is not responsible criminally for the acts of another; but in this case, and in all cases of this kind, the merchandise is responsible for the forbidden act of any person connected with it." So also, said Mr. Justice STRONG, in his opinion in this case: "This is not a proceeding against the importers. It is against the goods imported. They are treated as guilty." It is plain, therefore, that if the communications to the revenue officers, proposed to be proved, were relevant to the inquiry in hand, they were not objectionable because they were made in the absence of the claimant. I do not understand the Court below as having unqualifiedly instructed the jury that the burden of proof, as to fraudulent intent, was upon the claimant. The language of the Judge was: "You must commence your inquiry with this proposition, that the importation of the goods was contrary to law. That much has been settled in the case in the previous trial. Then, if you are of the opinion, from the facts shown, that Mr. Bean knew that his method of bringing in the merchandise was unlawful, the burden rests upon him to satisfy you by affirmative proof, that he did not adopt this method for the purpose of evading the payment of duties, but for some other and lawful purpose, as, for instance, to save freight, or to save time in the matter of transportation.. But, if you are of opinion, that he was not aware that such a mode of bringing in or unloading of the goods was contrary to law, then the Government is obliged to establish by positive proof to your satisfaction, that all the steps taken by him, in the direction of their transportation, were taken with a fraudulent intent, to wit, for the purpose of getting the merchandise into the country without the paying of duties." There was evidence to show that the goods were imported, and were removed from the vessel in violation of law, and it was necessary to determine whether a violation of law was actually intended. Was it not then pertinent to show, that what was done in reference to the goods was in pursuance of a prearranged plan; that the fact of an intended illegal importation was known to the officers beforehand? And if the subsequent There is no error in this. Its obvious import mode of dealing with them by the person in is, that, if the claimant knew he was violating the whose control they were accorded with the in-law, an intent to evade the duties might fairly be formation given to the officers, as to what was imputed to him by the jury, and that hence it deproposed to be done, may not the essential illegal volved upon him to present satisfactory counter intent be impressed upon the goods? If an illegal act is committed, may not information communicated to an officer, within the scope of his duty, of a purpose to commit it and of the manner of committing it, although not derived directly from the wrong doer, be considered to characterize the intent with which the act was committed? Indeed, I think, where a seizure has been made, and the question is whether it was warrantable, information of a purpose to do an act, touching the subject of it, which is verified by the commission of the act, may properly be regarded as so connected with the act itself, as to constitute part of the res gesta, and is provable as such, in proceedings of this kind. Evidence of a kindred character was allowed in the case of proof that he was actuated by a lawful purpose. In other words, that the presumption of fraudulent intent arising from wilful violation of the law, shifted upon the claimant the burden of proving the absence of such intent. This does not confound guilty knowledge with fraudulent intent, but correctly states, that an intent to evade the payment of duties and thus to defraud the Government, may properly be inferred from an overt, wilful violation of law, and that the duty of disproving this unfavorable inference devolved upon the claimant. No special notice of the other errors assigned seems to me to be necessary. It is sufficient to say, that I do not think they are sustained. The judgment is affirmed. |
