[469]

"Dear Sir: In reply to yours of 10th inst., would say that we received a letter from agent Phillips, dated February 7, 1883, wherein he writes: 'I found the inclosed upon my table on my return home, and forward the same.' The inclosed were incomplete proof papers relating to the death of Mr. Frank Edwards, and we acknowledged the receipt of same Feb'y 9th, manufacturer, the invoice need only state the fair 1. Where imported goods are the property of their asking for a full report of the analysis of Ed-market value of the goods at the place of manufactwards' stomach, the report to be certified by the chemist who made the analysis. We have no further intelligence respecting the matter.

by reason of the acts alleged to have been com- | 2864 of the Revised Statutes; that the defendmitted by the defendants as consignees of the ants, being agents of the merchandise men. goods, which was the capacity in which they tioned in the complaint, knowingly made entry received and entered the goods, the goods being thereof by means of invoices which did not the property of the manufacturers of them in contain a true statement of the particulars reSwitzerland, and being consigned to the de- quired in that part of the Act of March 3, 1863, fendants for sale on commission. The facts preceding the provision of the Act which was sought to be proved against the defendants re-enacted as section 2864 of the Revised Statwere that they, knowingly and with intent to tutes; that the defendants, being the consignees defraud the revenue, entered the goods at in- of the merchandise mentioned in the complaint, [199] voice prices lower than their actual market knowingly made entry thereof by means of value at the time and place of exportation. false and fraudulent documents and papers; The court ruled that there was no existing stat- and that the defendants, being the agents of ute of the United States under which the plaint the merchandise mentioned in the complaint, iff could recover upon any possible proof, and knowingly made entry thereof by means of that a verdict must be directed for the defend false and fraudulent documents and papers. ants. 19 Fed. Rep. 893. The plaintiff except- These requests being successively denied, the ed to this ruling. plaintiff excepted to each refusal. The jury, under direction of the court, found a verdict for the defendants, to which direction the plaintiff excepted. After a judgment for the defendants, the plaintiff took the case to the circuit court by a writ of error, where the judg ment was affirmed; and they have brought the case to this court by a writ of error.

The two sections of the Revised Statutes upon which the United States base their right of recovery in the case are sections 2839 and 2864. Section 2839 was originally enacted as part of section 66 of the Act of March 2, 1799, chap. 22, 1 Stat. at L. 677, and reads as follows:

44

Sec. 2839. If any merchandise, of which entry has been made in the office of a collector, is not invoiced according to the actual cost thereof at the place of exportation, with design [203] to evade payment of duty, all such merchandise, or the value thereof, to be recovered of the person making entry, shall be forfeited."

Section 2864 was originally enacted as part of section 1 of the Act of March 3, 1863, chap. 76, 12 Stat. at L. 738, and reads as follows: "Sec. 2864. If any owner, consignee or agent of any merchandise shall knowingly make, or attempt to make, an entry thereof by means of any false invoice, or false certificate of a consul, vice consul, or commercial agent, or of any invoice which does not contain a true statement of all the particulars herein before required, or by means of any other false or fraudulent document or paper, or of any other false or fraudulent practice or appliance whatsoever, such merchandise, or the value thereof, shall be forfeited."

The main contentions on the part of the defendants are that section 2839 relates only to purchased goods, and not to consigned goods, and that section 2864 is superseded by section 12 of the Act of June 22, 1874, chap. 391, 18 Stat. at L. 188. These contentions were sustained by the district court in its opinion.

Section 2839 provides for the forfeiture of merchandise, or the value thereof, "To be recovered of the person making entry," where the merchandise is "not invoiced according to the actual cost thereof at the place of exportation, with design to evade payment of duty." This section, originally enacted in 1799, is applicable only to goods which are required to be invoiced according to their actual cost at the place of exportation. Alfonso v. U. 8. 2 Story, 421, 429, 432. By section 2841 of the Revised Statutes, originally section 4 of the Act of March 1, 1823, chap. 21, 8 Stat. at L. 730, 732, forms of oaths on the entry of goods are prescribed, one for the "consignee, importer, or agent," one for the "owner in cases where merchandise has been actually purchased,” and a third for the "manufacturer or owner in cases where merchandise has not been actually purchased." In the first form of oath, the oath is that the invoice "exhibits the actual cost (if purchased), or fair market value (if otherwise obtained)," at the time and place of procurement. In the second form of oath, the oath is that the oath contains "a just and faithful account of the actual cost In the third form of oath, the oath is that the goods were not actually bought by the importer or consignee, or by his agent, in the ordinary mode of bargain and sale, but that nevertheless the invoice" contains a just and faithful valuation of the same, at their fair market value” at the place of procurement.

The bill of exceptions contains the following
statement as to the proceedings after the above
ruling of the court: The plaintiff asked leave
to prove, successively, that items contained in
the invoices mentioned in the complaint and
bill of particulars were undervalued, within
the meaning of the last clause of section 12 of
the Act of June 22, 1874, which reads as fol-
lows: "Anything contained in any Act which
provides for the forfeiture or confiscation of an
entire invoice in consequence of any item or
items contained in the same being undervalued,
be, and the same is hereby, repealed;" that the
defendants, being consignees of the merchan-
dise mentioned in the complaint, knowingly
made entries thereof by means of false invoices;
that the defendants, being agents of the mer-
chandise mentioned in the complaint, knowing- Section 2845, originally section 8 of the Act
ly made entry thereof by means of false in- of March 1, 1823, chap. 21, 3 Stat. at L. 733, pro-
voices; that the defendants, being consignees vides that "No merchandise subject to ad va-
of the merchandise mentioned in the com- lorem duty, belonging to a person not residing
plaint, knowingly made entry thereof by means at the time in the United States, who has not
of invoices which did not contain a true state-acquired the same in the ordinary mode of bar-
ment of the particulars required in that part of
the Act of March 3, 1863, preceding the provi-
sion of the Act which was re-enacted as section

gain and sale, or belonging to the manufacturer,
in whole or in part, of the same, shall be ad-
mitted to entry, unless the invoice thereof is

[204]

[206]

verified by the oath of the owner or of one of
the owners, * * * certifying that the invoice
contains a true and faithful account of the mer-
chandise, at its fair market value, at the time
and place when and where the same was pro-
cured or manufactured, as the case may be."

"

tice or appliance whatso-
ever, such merchandise
or the value thereof shall
be forfeited."

any portion thereof, ac-
cruing upon the mer-
chandise, or any portion
thereof, embraced or re-
ferred to in such invoice,
affidavit, letter, paper,
or statement, or affected [207]
by such act or omission,
shall, for each offense,
be fined in any sum not
exceeding five thousand
dollars nor less than fifty
dollars, or be imprisoned
for any time not exceed-
ing two years, or both;
and, in addition to such
fine, such merchandise
shall be forfeited; which
forfeiture shall only ap-
ply to the whole of the
merchandise in the case
or package containing
the particular article or
articles of merchandise
to which said fraud or al-
leged fraud relates; and
anything contained in
any Act which provides
for the forfeiture or con-
fiscation of an entire in-
voice in consequence of
any item or items con-
tained in the same being
undervalued, be, and the
same is hereby repealed."

Section 2854, originally a part of section 1 of
the Act of March 3, 1863, chap. 76, 12 Stat.at L.
737, provides as follows: "All such invoices
(that is, all invoices of merchandise imported
from any foreign country), "shall, at or before
the shipment of the merchandise, be produced
to the consul, vice consul, or commercial
agent of the United States nearest the place of
shipment, for the use of the United States, and
shall have indorsed thereon, when so produced,
a declaration signed by the purchaser, manu-
facturer, owner or agent, setting forth that the
invoice is in all respects true; that it contains,
if the merchandise mentioned therein is subject
to ad valorem duty, and was obtained by pur-
chase, a true and full statement of the time
when and the place where the same was pur-
chased, and the actual cost thereof, and of all
charges thereon; and that no discounts, bounties
or drawbacks are contained in the invoice but
such as have actually been allowed thereon;
and when obtained in any other manner than
by purchase, the actual market value thereof
at the time and place when and where the same
was procured or manufactured; and if subject
to specific duty, the actual quantity thereof;
and that no different invoice of the merchandise, and also assuming that the suit for a for-
dise, mentioned in the invoice so produced, has
been or will be furnished to any one. If the
merchandise was actually purchased, the decla-
ration shall also contain a statement that the
currency in which such invoice is made out is
the currency which was actually paid for the
merchandise by the purchaser."

It is quite clear, from the above provisions, that where imported goods are the property of their manufacturer, the invoice need only state the fair market value of the goods at the place of manufacture, and it need not state "the actual cost thereof at the place of exportation." Therefore, an invoice of goods which belong to their manufacturer is not, nor is an entry of such goods, within the purview of section 2839, so as to make the person entering them with design to evade payment of duty liable to a forfeiture of their value.

The most serious question arises in respect to section 2864, which is alleged to have been superseded by section 12 of the Act of June 22, 1874. The two statutes are here placed in parallel columns:

Section 2864 Revised Stat- Section 12 of the Act of

utes (2d ed.)

"If any owner, con-
signee, or agent of any
merchandise shall know
ingly make, or attempt
to make, an entry there-
of by means of any false
invoice, or false certifi-
cate of a consul, vice
consul, or commercial
agent, or of any invoice
which does not contain
a true statement of all
the particulars herein-
before required, or by
means of any other false
or fraudulent document

or paper, or of any other
false or fraudulent prac-

June 22, 1874.

Assuming that the language of section 2864,
declaring that the merchandise or its value
shall be forfeited, would authorize a suit in
personam, without a seizure of the merchan-

feiture of the value may be brought against the
owner, consignee or agent, the question for
determination is whether the provision in sec-
tion 2864, for a forfeiture of the value, is super-
seded by the enactment of section 12 of the Act
of June 22, 1874, which provides only for a
forfeiture of the merchandise, and does not pro-
vide for any forfeiture of its value.

Section 13 of the Act of June 22, 1874, pro-
vides that any merchandise entered by any per-
son violating section 12, but not subject to for-
feiture under that section, may, while owned
by him or while in his possession, "to double
the amount claimed, be taken by the collector
and held as security for the payment of any fine
or fines incurred as aforesaid." Section 14 pro-
vides that the omission, without intent thereby
to defraud the revenue, to add, on entry, to the
invoice, certain specified charges, shall not be
a cause of forfeiture of the goods "or of the
value thereof." Section 16 provides that, in
suits to enforce the forfeiture of goods, "or to
recover the value thereof." no fine, penalty, or
forfeiture shall be imposed unless the jury shall
find that the alleged acts were done with an
actual intention to defraud the United States.
Section 26 repeals all Acts and parts of Acts in-
consistent with the provisions of that Act.
There is not in the Act any other repealing
provision, except that contained in the con-
cluding words of section 12, above quoted.

"That any owner, im-
porter, consignee, agent,
or other person whoshall,
with intent to defraud
the revenue, make, or at-
tempt to make, any entry
of imported merchan-
The Act of June 22, 1874, was passed on the
dise, by means of any
fraudulent or false in- same day with the Revised Statutes, section
voice, affidavit, letter, or 5595 of which declares that the Revised Stat-
paper,or by means of any utes embrace the general and permanent Stat-
false statement, written
or verbal, or who shall utes of the United States which were in force on
be guilty of any willful the first day of December, 1873. Section 5601
act or omission by means declares that the enactment of the revision is
whereof the United
States shall be deprived not to affect or repeal any Act of Congress
of the lawful duties, or passed since the first day of December, 1873;

[208]

[209]

that all Acts passed since that date are to have
full effect, as if passed after the enactment of
the revision; and that, so far as such Acts vary
from or conflict with any provision contained
in the revision, they are to have effect as sub-
sequent statutes, and as repealing any portion
of the revision inconsistent therewith. The Act
of June 22, 1874, is, therefore, a subsequent
statute to the Revised Statutes, and repeals any
portion thereof which is inconsistent with such
subsequent statute.

date it was made, which was after the passage
of the Act of June 22, 1874, chap. 391, Con-
gress regarded section 2864, as thus amended,
as a valid existing law, particularly in respect
to the amendment, and intended to declare that
the value of the merchandise should be for-
feited under section 2864, notwithstanding the
passage of the Act of June 22, 1874, chap. 391.
But we are of opinion that the amendment
made by the Act of February 18, 1875, did not
have the effect contended for. Its sole object
was to correct errors and supply omissions in
the text of the Revised Statutes, as its title in-
dicates, so as to make the same truly express
the statutes in force on the first of December,
1873, and it made special reference to the
printed volume of the Revised Statutes. It was
in no respect new legislation, nor a new law
enacted to take effect from the date of its pas-
sage, in such wise as to alter any enactment
utes. The intention was to make section 2864
read as it ought to have read in the printed
volume, in the shape in which it was in force
on the first day of December, 1873, as a part
of section 1 of the Act of March 3, 1863, chap.
76, 12 Stat. at L. 738. It left the the Act of
June 22, 1874, chap. 391, to have its full effect
in respect to section 2864, in like manner as if
the words "or the value thereof " had been con-
tained in that section, in the printed volume of
the Revised Statutes. There was a law in force
on December 1, 1873, and subsequently thereto,
down to June 22, 1874, authorizing a forfeiture
of the value of merchandise for the causes stated
in section 2864, and the fact that forfeitures of
such value might have been incurred during
the intervening period between December 1,
1873, and June 22, 1874, was a sufficient reason
for the correction made in section 2864.
The judgment of the Circuit Court is af
firmed.

On a full review of the above recited pro-
visions of the Act of June 22, 1874, and of its
other provisions, it is apparent that, so far, at
least, as the acts subject to the penalties de-
nounced in section 2864 are concerned, they are
entirely covered by the provisions of section
12 of the Act of June 22, 1874. There is no
act denounced by section 2864 that is not em-
braced, both as to person and character of act,
by the provisions of section 12. The latter sec-made since the passage of the Revised Stat-
tion adds, as a punishment for the offense, fine
or imprisonment or both, and a forfeiture of the
merchandise, in addition to the fine. It leaves out
a forfeiture of the value of the merchandise; and
forfeiture of such value is inconsistent with the
terms of section 12, and is therefore repealed by
it. The absolute forfeiture of the merchandise,
provided for by section 12, is inconsistent, also,
with the alternative forfeiture of the merchan-
dise or its value, provided for by section 2864.
The provisions of the two statutes cannot
stand together. Norris v. Crocker, 54 U. S. 13
How. 429, 438[14: 210, 213]: U. S. v. Tynen, 78
U. S. 11 Wall. 88, 92 [20: 153, 154] Mur-
dock v. Memphis, 87 U. S. 20 Wall. 590, 617
[22: 429, 437]; U. S. v. Claflin, 97 Ú. S.
546, 552, 553 [24: 1082, 1085]; King v. Cor-
nell, 106 U. S. 395, 396 [27: 60]; Pana v.
Bowler, 107 U. S. 529, 538 [27: 424, 428].

The considerations covered by the foregoing views are so well discussed and enforced in the opinion of the district judge in this case that it is not deemed necessary further to enlarge upon them.

R.

WALTER & COMPANY, Judgment Cred-
itors of LAKE & AUSTIN, Piffs. in Err.,

0.

BICKHAM & MOORE.

(See 8. C. Reporter's ed. 820-826.)
Practice-levy of attachment-whether by proper
officer-subsequent consent order of sale-sub-
sequent judgment creditors cannot object to reg-
ularity of original levy.

Section 2864 of the Revised Statutes, when
originally enacted on the 22d of June, 1874, did
not contain the words "or the value thereof "
after the words "such merchandise." By the
Act of February 18, 1875, chap. 80, 18 Stat. at
L. 319, entitled "An Act to Correct Errors and
to Supply Omissions in the Revised Statutes of
the United States," and which Act states "That,
for the purpose of correcting errors and supply-
ing omissions in the Act entitled 'An Act to
Revise and Consolidate the Statutes of the Unit-
ed States in Force on the First Day of Decem-
ber, Anno Domini One Thousand Eight Hun-
dred and Seventy-Three,' so as to make the same
truly express such laws, the following amend-
ments are hereby made therein," it is provided Where, after the levy of an attachment, upon the
as follows: "Section two thousand eight hun- consent of the attachment creditors, the debtors
dred and sixty-four is amended by inserting in sold by order of the court, and the proceeds paid
and their assignee, the attached goods have been
the last line, after the word 'merchandise,' the to the clerk to be held subject to the order of the
words or the value thereof.'" Section two of court, subsequent Judgment creditors cannot be
the Act directs the Secretary of State, "if prac-erty was originally seized and brought into court
heard to object to the manner in which the prop-
ticable, to cause this Act to be printed and and made subject to its orders.
bound in the volume of the Revised Statutes
of the United States."

་

It is contended for the United States that this

amendment to section 2864, made by the Act
of February 18, 1875, can be reasonably ac-
counted for only upon the theory that, at the
122 U. S.
U. S., Book 30.

[No. 302.]
Submitted May 11, 1887. Decided May 27, 1887.

[210]

[320]

[321]

[822]

The history and facts of the case appear in
the opinion of the court.

Mr. M. R. Walter, for plaintiffs in error.
No counsel appeared for defendants in error.

ately pay to the clerk of this court, and be held
subject to the orders of this court. The pro-
ceeds of such sale shall stand in all respects in
lieu of and represent the goods and effects as-
signed and attached, and be liable as said prop-
erty and effects now and to said attachment
liens in their order, and not further or other-

Mr. Justice Harlan delivered the opinion of the court: September 29, 1883, Bickham & Moore, cred-wise; and the rights of the parties claiming said itors of Lake & Austin, sued out from the court goods and effects to replevy the same or to rebelow an attachment against the property of duce the same or any part thereof upon claim said debtors, directed to the Marshal of the made and the execution of bond, as required by United States for the Northern District of Mis-law, shall be in no wise prejudiced or affected sissippi. The writ came to the hands of that by said sale; nor shall the consent to said sale officer for execution. The attorney of the plaint- in any wise operate as a waiver of or to the iffs informed him that "he wanted a blank prejudice of any right, benefit, or advantage deputization on a writ of attachment to send to now held, possessed or claimed by said parties Grenada," which was the place of the residence or any of them, but all and singular the same of the debtors. This request was at first de- shall be preserved, this being simply a consent nied, but finally the following indorsement was order, and intended to convert the property made on the writ: "I hereby appoint into money in order to protect the same from waste and great depreciation, and to let the [323] money represent the property in all respects in the litigation. It is further ordered that said marshal do keep accounts of his said sales, showing the amount of proceeds of the several assets sold in the several bulks."

my special deputy to execute this writ, the plaintiff not holding me for the acts of such deputy. J. L. Morphis, U. S. Marshal." The writ, so indorsed, was delivered to the attorney of the attaching creditors and he proceeded to Grenada with it.

A sale was had pursuant to that order, and the sum of $24,550-not more than sufficient to satisfy the claim of the plaintiffs and their costs

was realized, and paid over to the clerk of the court. The return of sale shows that so much of the order as required the sale of the books of account and choses in action was rescinded, and the notes levied on were delivered to A. C. Hebron "in accordance with an agreement between counsel for plaintiff and defend ants."

The marshal testifies that he made the above
indorsement with the understanding that the
blank should be filled up with the name of a
"bonded officer." Application being made to
R. A. Hall, Sheriff of Grenada County, to exe-
cute the writ, that officer agreed to do so. His
name was accordingly inserted in the blank
left in the indorsement thereon. He subse-
quently declined to act. Thereupon, the attor-
ney for the attaching creditors erased the name
of Hall and filled the blank with the name of
Samuel Ladd, who was a town marshal. The On the 20th dayer, 1884, the plaint-
latter executed the attachment on the second of iffs in error, creditors of Lake & Austin, pro-
October, 1883, by levying upon certain prop-cured a judgment against the latter for
erty belonging to Lake, and to Lake & Austin. $6,300.26, and obtained thereon a writ of gar
At a late hour of the same day, a regular dep-nishment against the marshal and clerk of the
uty of the marshal appeared at Grenada and court.

took possession of the personal property, which On the second of January, 1884, the same
had been previously seized by Ladd under the judgment creditors moved the court to dis-
writ of attachment. The writ was also deliv-charge the levy made in behalf of Bickham &
ered to him by Ladd.
Moore upon the following grounds:

On the 19th day of October, 1883, the following order of sale was made in the cause:

"1. Because said alleged levy was not made by the U. S. Marshal or any of his deputies, or by anyone duly authorized to execute said writ of attachment.

"2. Because the writ of attachment in this cause was levied and executed by Sam. Ladd, who was not and is not an officer of this court from which said writ emanated and was returnable, said Ladd not being either a regular deputy U. S. Marshal or a special deputy.

8. Because Mr. H. M. Sullivan, one of the attorneys for plaintiffs in this cause, appointed said Sam. Ladd to execute the said writ of at tachment.

"Upon the application and consent, by attor-
neys, of all the creditors who have heretofore
sued out attachments in this court against Lake
& Austin, defendants, and upon consent of said
defendants and A. C. Hebron, claimant, as as-
signee in the deed of assignment executed by
said Lake & Austin, and with the consent of
all other and non-attaching creditors of said
Lake & Austin, who are this day represented
by Messrs. Sullivan & Sullivan and Slack &
Longstreet, and it appearing unto the court
that an immediate sale of the effects so assigned
and attached will best promote and subserve "4. Because J. L. Morphis, the U. S. Marshal
the interests of all and each and every of the for the Northern District of Mississippi, appoint
creditors of said Lake & Austin; Therefore, It ed R. N. Hall, Sheriff of Grenada County, his de
is ordered, adjudged and decreed by the court puty to execute the said writ of attachment in this
that the marshal of this judicial district shall cause, by his written deputation upon the back
sell at public auction, for cash, to the highest of and on the said writ of attachment, which
bidder, in one bulk, all the dry goods, grocer said writ was sued out in the U. S. Court for
ies, and all other merchandise assigned by said the Northern District of Mississippi; and said
Lake & Austin and subsequently attached and writ was not executed by said Hall, who was
seized under writs issued from this court as so appointed, but was executed by said Sam.
aforesaid, * * * and when so sold, the pro- Ladd upon the appointment of Mr. H. M. Sul-
ceeds of such sale said marshal shall immedi-livan as aforesaid, without any further author-

[324]