Bowie v. Henderson. 6 W.

The bill charged a debt due on bills of exchange, from the defendant, Henderson, to the complainant; that the debtor was an absentee; that he had funds in the hands of the defendant Auld; and prayed a condemnation of those funds, to answer the complainant's demand. The defendant, Henderson, pleaded the statute of limitations. To this plea the complainant filed a replication, that the said A. Henderson, on the 8th of May, 1806, in the county of Alexandria, before N. F., one of the judges of the District of Columbia, did take the benefit of the act for the relief of insolvent debtors within the District of Columbia, and did then and there give a schedule of his estate, and a list of his creditors; and in the said list of his creditors so given in, he, the said Henderson, did state, that the said complainant was a creditor of his to the amount of $4,586.39, which said list of creditors so given in, he, the said Henderson, did state, was entered of record in the clerk's office of the court of the county of Alexandria, as by reference to the records of the said court will fully and at large appear, and which said debt so given in, is [516] the debt for which the complainant has instituted his suit aforesaid. And the said complainant saith, that the moneys and effects which the said complainant seeks, in his bill aforesaid, to subject to the payment of his debt aforesaid, were obtained and acquired by the said defendant, Henderson, long subsequent to his taking the oath of insolvency aforesaid. And the said complainant saith, that as soon as he, the said complainant, obtained any knowledge of the said defendant, Henderson, having obtained the funds aforesaid, and within the period of six months after he obtained a knowledge thereof, he, the said complainant, did institute his aforesaid bill in chancery, to subject the funds to the payment of his said debt, all which, &c. The defendant demurred to this replication, and the court below, on hearing, adjudged the demurrer good.

The question in this case turned upon the construction of the 3d section of the act of congress, for the relief of insolvent debtors within the District of Columbia, passed March 3, 1803, (2 Stats. at Large, 237.)

Swann and Jones, for the appellant.

Taylor, for the respondents.

MARSHALL, C. J., delivered the opinion of the court, and [518] after stating the case, proceeded as follows:

It is perfectly clear that no such exception is contained in the statute of limitations, or in the act of congress concerning insolvent debtIf it is to be created at all, it must be by implication. It is

ors.

Spring v. The South Carolina Insurance Company. 6 W.

contended in the first place, that the insolvent debtor, after his discharge, is to be considered in respect to his future property, as a trustee for his creditors; and the statute of limitation does not run against a trust. If he is a trustee for his creditors, is he a trustee for those creditors only who were such at the time he obtained the benefit of the act? or, is he a trustee for those who afterwards become his creditors? It will not be pretended that he is exclusively a trustee for the former; and if he be a trustee for the benefit of all his creditors, then this suit should have been brought for the benefit of all, and not for the benefit of a single creditor. The proviso of the section respecting the liability of the future property of the insolvent, has been supposed to aid the argument that he is a trustee. But we are all of a different opinion; the previous part of the section having exempted his person from imprisonment, the object of the proviso was to make all his future effects liable, and to retain all the remedies against it, in the same manner as if his person had not been discharged. The act, therefore, did not intend to create any new liability, or any new trust.

It is further insisted, that this is to be considered as an [*519] exception out of the statute of limitations, * because it is a debt of record. But a debt of record, in the sense of the common law, is a debt or contract created of record; such as a statute staple, or statute merchant, and not one whose previous existence is only admitted of record. The effect of recording this debt was merely an admission of its existence, and not a change of its nature. It would have been sufficient evidence, if five years had not elapsed after recording, to have sustained an issue on a replication of a new promise to the plea of the statute of limitations. But more than five years having elapsed, it could have no application in this case. It is the opinion of the court, that the demurrer to the replication is sustained, and that judgment ought to be given for the defendant. Decree affirmed.

SPRING et al. v. THE SOUTH CAROLINA INSURANCE COMPANY.

6 W. 519.

In an equity cause, the res in litigation may be sold by order of the circuit court, and the proceeds invested in stocks, notwithstanding the pendency of an appeal to this court. Hunt, for the respondents, moved to docket and dismiss the appeal in this case, which was a suit in chancery, commenced in the circuit court of South Carolina, no transcript of the record having [* 520 ] * been lodged by the appellants with the clerk of this court, within the first six days of the term, according to the rule.

United States v. Six Packages of Goods. 6 W.

Wheaton, for the appellants, opposed the motion, upon the ground that no certificate was produced from the clerk of the court below, stating that an appeal had been taken, according to the rule.

The COURT denied the motion, but stated that as the object of the respondents was to have the proceeds of the property in litigation, which had been sold by order of the court below, invested in stocks, such investment might be made by the court below, notwithstanding the pendency of the appeal in this court. Motion denied.

THE UNITED STATES V. SIX PACKAGES OF GOODS. Toler, Claimant. 6 W. 520.

The making a correct post entry does not bar a forfeiture for a prior fraudulent entry, under the 67th section of the act of March 2, 1799, (1 Stats. at Large, 677.)

APPEAL from the circuit court of the United States, for [521] the southern district of New York.

This was a libel of information filed in the court below against certain goods imported from London in the ship Isabella, at the port of New York, as forfeited under the 67th section of the Collection Act of the 2d of March, 1799.

The Attorney-General and Pinkney, for the United States.

D. B. Ogden and Wheaton, for the claimant.

LIVINGSTON, J., delivered the opinion of the court.

This is a libel under the 67th section of the Collection Law, passed the 2d of March, 1799.

This section provides that it shall be lawful for the collector, naval officer, or other officers of the customs, after entry made of any goods, wares, or merchandise, on suspicion of fraud, to open and examine, in the presence of two or more reputable merchants, any package or packages thereof; and if, upon examination, they shall be found to agree with the entries, the officer making such [522] seizure and examination shall cause the same to be repacked, and delivered to the owner or claimant forthwith; and the expense of such examination shall be paid by the said collector or other officer, and allowed in the settlement of their accounts; but if any of the packages so examined shall be found to differ in their contents from the entry, then the goods, wares, or merchandise contained in such package or packages, shall be forfeited: Provided, that the said

United States v. Six Packages of Goods. 6 W.

forfeiture shall not be incurred, if it shall be made appear to the satisfaction of the collector and naval officer of the district where the same shall happen, if there be a naval officer, and if there be no naval officer, to the satisfaction of the collector or of the court in which a prosecution for the forfeiture shall be had, that such difference arose from accident or mistake, and not from an intention to defraud the

revenue.

These goods being claimed by Hugh K. Toler, of the city of New York, merchant, were condemned by the district court of the United States, for the southern district of New York, which sentence being reversed by the circuit court for that district, an appeal from the last sentence has been taken to this court.

Before we examine the facts of the case, or whether they establish a fraud, without which the prosecution, under this section, cannot be sustained, it will be necessary to dispose of a question of law, which has been made by the counsel for the claimant.

It is conceded on all hands, that on the 3d of November, [523] 1810, the six packages which are libelled *were entered at

the custom-house by Thomas Ash, on behalf of the claimant, and that the entry covered only a part of the goods which the packages contained. That two days after, Toler himself completed the entry of the residue of the goods, which were in these packages, and which had not been previously entered by Ash. Several days after, the packages were opened and examined by the collector, in presence of two merchants, and their contents were found not to differ, but to agree with the two entries taken together; but to differ very materially from the first entry made by Ash; upon which the collector made a seizure of them. On these facts, about which there is no dispute, it is denied that the collector had any right to seize, inasmuch as, when the inspection took place, there was no difference between the goods found in the packages, and those mentioned in the invoices. It is said that the collector, if he suspected a fraud, ought to have made a seizure before the second entry, in which case the difference which would have existed between the goods on which a duty was secured, and those in the packages, would have justified such an act; but that by waiting until a second entry was made, the fraud, if any committed, was purged. In support of this position, it is said that the collection law provides for a post entry of this kind, and that the very oath which is taken when an entry is made, imposes on the party who makes it, the duty, in case he shall afterwards discover any other goods in a package than those first entered by him, of immediately informing the collector, and making a further entry thereof.

United States v. Six Packages of Goods. 6 W.

This provision, and the form of the oath, suppose no [*524 ] more than that a deficient or defective entry may be made innocently, and under a mistake, without any certain knowledge at the time of the contents of the packages entered. For, if the party making an entry knows at the time of other goods, such other goods. cannot be entered afterwards, and the oath usual on such occasions cannot be taken without admitting that a perjury had been committed at the time of the first entry. The court is, therefore, of opinion, that, although the seizure was not made until after the second entry, the collector had a right to seize for any variance between the contents of the packages, and the first entry, and that such seizure will be valid, and must be followed by sentence of condemnation, unless it shall turn out that such difference proceeded from accident or mistake, and not from an intention to defraud the revenue. Whether the case of the claimant be entitled to this favorable interpretation the court will now proceed to inquire.

A great deal of testimony, which was not produced in the circuit. court, and which might easily have been, (as all the witnesses resided in the city of New York,) has been taken since the appeal; and it is, on this testimony, as well as on that which was there taken, that the sentence of that court must now be reviewed.

It is in proof, and indeed admitted by the claimant, that a very imperfect entry of the goods contained in these packages was made on Saturday, the 3d day of November, 1810, by Thomas Ash, who had been employed by Toler to enter the same; and that

the residence of the goods therein contained was not [*525 ] entered by the claimant, until the 5th day of the same month. Το escape from the consequences of the first entries not being complete, and to repel the imputation of its originating in fraud, the plaintiff has endeavored to prove that the letter covering the invoices of the goods contained in the second entry was not received by him when the first entry was made. To establish this fact, his clerk, Mr. Crane, has been examined as a witness, and admitting that he has told the truth, there would be some reason to believe that such were the fact; but there are many circumstances which now appear in this cause, which compel us to withhold from Mr. Crane the credit which might otherwise be due to him. The usual course of business, as testified to by several very respectable merchants, stand opposed to his relation, that invoices of only part of the goods contained in those packages were inclosed in a letter to H. K. Toler and Co., and invoices of the other goods in a letter to J. K. Jaffray, which had been forwarded to that gentleman at Albany. It appears from all the testimony, that if a package, consigned to one person, contain goods