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the building No. 66 Nassau Street, in the city of New York, did, on the 27th of February, 1883, with due warrant therefor, enter the said building, in the daytime, and there search for such goods, and did then and there find the same concealed, and did seize and secure the same for trial, and that the duties had not been paid or secured to be paid thereon, contrary to said section.

The third count is based on § 2802, and avers that the said goods, being articles subject to duty, were, on the 27th of February, 1883, found in the baggage of a person arriving in the United States, and were not, at the time of making entry for such baggage, mentioned to the collector before whom such entry was made by the person making the same, contrary to said section.

day of

The fourth count is based on § 2809, and avers that the said goods were, on the -, one thousand eight hundred and imported into the United States in the vessel, name unknown, belonging in whole or in part to a citizen or citizens, inhabitant or inhabitants of the United States, from a foreign port or place, and were not included in the manifest, and belonged or were consigned to the master, mate, officers, and crew of such vessel, contrary to said section. The fifth count is based on § 3082, and avers that on or about the day of one thousand eight hundred and ——————, an unknown person did fraudulently and knowingly import and bring into the United States, and assist in so doing, the said goods, contrary to law, and did receive, conceal, buy, sell, and in some manner facilitate the transportation, concealment, and sale of such goods after their importation, knowing the same to have been imported contrary to law, contrary to said section.

One Augusta Friedenstein put in a claim to the goods as owner, and answered the information, denying the forfeiture. The case was tried by a jury in the District Court, which rendered "a verdict for the informants and against the claimant for the condemnation of the goods mentioned in the information, and that the acts complained of therein were done with intent to defraud the United States." A decree of

Opinion of the Court.

condemnation was entered thereon, and the claimant took the case by writ of error to the Circuit Court, which affirmed the decree of the District Court and remanded the case thereto for execution of the decree. The claimant has brought the case to this court by a writ of error.

The bill of exceptions shows the following state of facts in regard to the seizure of the goods: On the 27th of February, 1883, one Brackett, a special agent of the Treasury Department, went with two subordinates to the store of Goldsmith & Kuhn, No. 66 Nassau Street, where they found a man and a woman and the package of diamonds. The woman was a Mrs. Sussman. When Brackett reached the store, the diamonds were in the possession of Goldsmith & Kuhn. They told Brackett that Mrs. Sussman had handed the diamonds to them. Mr. Kuhn, who was behind the counter, had the package and handed it to Brackett upon his demand for it. Brackett took it, and requested Mrs. Sussman to accompany him to the custom-house, as he wished to make some inquiries about the diamonds. He took them to the custom-house, Mrs. Sussman accompanying him. In answer to a question put to Brackett by the counsel for the claimant, on his examination as a witness, as to when he took the diamonds, he said: "I took them at the store and took her down to the customhouse with them. If her explanation was satisfactory I did not intend to seize them." The package was opened at the custom-house, and the diamonds were examined and appraised, and were then placed in the hands of the officer in charge of the seizure room at the custom-house. Brackett was then asked by the district attorney: "When and where did you make the seizure of these diamonds?" To this question the claimant objected, as calling for a conclusion of law; but the court overruled the objection, and the claimant excepted. The witness replied: "The seizure of the diamonds was made at the custom-house in this city after I was through with my investigation."

It appeared that after Brackett and Mrs. Sussman arrived at the custom-house, and before the package was there opened, a conversation took place there between him and her. The bill of exceptions says:

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"The witness Brackett was recalled, and asked this question by the district attorney: 'Now state the conversation between Mrs. Sussman and yourself which occurred prior to the actual seizure of those diamonds in the custom-house, and on the same day when she went in company with you to the customhouse with the diamonds.'

"The claimant objected to this question, because Mrs. Sussman's statement, under the circumstances and at that time, could not affect the claimant; also, because the question involved a conclusion of law as to the time when actual seizure' took place. The court overruled the objection, admitting the question, and the claimant excepted.

"The witness Brackett, in reply to this inquiry, testified as follows: 'Well, I asked Mrs. Sussman from whom she got the diamonds. She said they belonged to another party, but she could not give the name of the party, neither would she give her own proper name. I told her, If you can give a satisfactory explanation, and if these goods have been brought into the port properly, and duties paid, the United States government don't want them; why do you object?' 'Well,' she says, 'I can't mention the name of the lady to whom these stones belong.' Well, she finally said to me, after some twenty minutes, perhaps, of conversation-there were two other parties in the room, Mr. Cohen sitting outside, and the door open-she said, 'I would like to see you in private.' 'Well,' said I 'these are my offices here; this is all private these offices.' 'No,' said she, 'I want to speak to you alone.' Well, I went into the adjoining room with her, and she then said to me, 'These diamonds belong to a lady, as I said before, whose name I won't give. The duty has not been paid on these diamonds. I am ready to go now before the collector and make arrangements to have the duties paid.' 'Well,' said I, I cannot do that, madam.' 'Well,' she says, 'I am ready; it can't be over $400.' I then went back to the room and told her that I could not make any such arrangement with her as that; the diamonds were then [not?] under seizure; then I made up my mind to seize them after this conversation. She said the duty would not be over $400; she was ready to go

Opinion of the Court.

before the collector and make arrangements to pay that duty.' The witness also testified that he sent for Gen. Palmer, and that Mrs. Sussman reiterated to Gen. Palmer what she had said to him, the witness.

"To further sustain the issues the government then called George W. Palmer, who, after testifying that he was the deputy collector in charge of the seventh division or law department of the custom-house, proceeded, under the objection of claimant's counsel, which objection was overruled and an exception to such ruling duly taken, to give in detail a conversation which he had with Mrs. Sussman at that time, of a similar nature to that testified to by Captain Brackett.

"It was also proved for the government, and acknowledged by Mrs. Sussman, when on the stand on behalf of the claimant, that she, Mrs. Sussman, had been to Europe and had returned from thence and landed at the port of New York in the latter part of August, 1882."

The ground urged against the admissibility of the conversation with Mrs. Sussman is that, she not being the owner of the diamonds, evidence as to her declarations was not admissible in derogation of the title to them, especially because such declarations were made after she had ceased to have the custody of them; and that it was error to permit Brackett to swear that, although he took physical possession of the property at 66 Nassau Street, before the conversation with Mrs. Sussman, he did not make the actual seizure until he made it at the custom-house, after the conversation with Mrs. Sussman.

But we see no objection to the evidence. It is plain, on the testimony, that the goods were not seized for forfeiture until after the conversation, and that the seizure took place at the custom-house, after the investigation and examination there, and did not take place at 66 Nassau Street. See Four Packages v. United States, 97 U. S. 404, 411. The second count of the information does not allege that the seizure took place at 66 Nassau Street. Its fair import is that the collector, with a warrant, entered those premises and searched for the goods and there found them, and that he afterwards seized and secured them for trial.

Opinion of the Court.

Mrs. Sussman, as appears from other evidence in the bill of exceptions, had carried the diamonds to the store of Goldsmith & Kuhn for the purpose of selling them to that firm. If they really belonged to the claimant, they had been put by her into the custody of Mrs. Sussman, for the purpose of selling them. Under these circumstances, Mrs. Sussman's declarations to Brackett, in regard to the goods, while he was making an official investigation and examination as to whether they should be seized for forfeiture, were part of the res gesto, and admissible in evidence as against the person claiming to be the owner of the goods, in a suit in rem for their forfeiture. It was competent for the claimant to contradict the facts stated to Brackett by Mrs. Sussman, in regard to the diamonds; but the minutes of the trial show that, although Mrs. Sussman was examined as a witness for the claimant, the claimant herself did not testify as a witness.

We see no objection to the evidence shown by the bill of exceptions to have been admitted under the exceptions of the claimant.

The claimant raises a point as to the sufficiency of the information. The record shows a full compliance with the statute in regard to the finding by the jury that the acts complained of in the information were done with intent to defraud the United States. It does not show that any motion in arrest of judgment was made; nor that any motion was made on the part of the claimant to dismiss the cause for any defect in the information. It is stated in the minutes of trial, which are contained in a paper aside from the bill of exceptions and forming no part of it, that, after the evidence for the United States had been put in, the counsel for the claimant moved to dismiss the case, and the motion was denied; but it is not stated on what ground the motion was made. Under these circumstances, any defect in the information which could have been availed of by demurrer, or by exception, or by a motion to dismiss at the trial, made on the ground of such defect, or by a motion in arrest of judgment, must be regarded as having been waived, or as having been cured by the verdict. Coffey v. United States, 116 U. S. 436.