Jones v. Shore's Executor

THE material facts of these cases are as follows: On the 23d of November, 1808, a bond was executed at the custom-house of Petersburg, in Virginia, to the United States, by Thomas Pearse, master of the ship Sally, of Philadelphia, and Robert M'Adam, Daniel Filton, and George Pegram, jun., in the penal sum of 46,300 dollars, upon condition that if the cargo of said vessel, consisting of 830 hogsheads of tobacco, intended to be transported in said vessel from the port of Petersburg to the port of Boston, in Massachusetts, should be relanded in the United States, the danger of the seas excepted, then the obligation to be void, otherwise to remain in full force. The bond was, in fact, given to John Shore, the collector of the district of Petersburg, in pursuance of the second section of the embargo act of the 22d December, 1807, ch. 5. A suit was afterwards brought by the said collector on the same bond in the district court for the district of Virginia, and pending the proceedings in said court, to wit, on or about the 30th of October, 1811, John Shore, the collector, died; and judgment was finally recovered on the same bond, in favour of the United States, on the 30th of November. 1811. On the 26th of the same November, John Jones was duly appointed and commissioned by the president as collector of the same district, and he qualified as such, and took upon himself the discharge of the duties of the office on the 14th of December, 1811; until which time, Thomas Shore, who was deputy collector under John Shore at the time of his decease, continued, as such deputy collector, to discharge the duties of the office. Mr. Pegram sued out a writ of error from the said judgment, to the circuit court for the district of Virginia, and Mr. Pegram having died pending the proceedings, the suit was revived by his administrator and the judgment of the district court was, at May term, 1814, affirmed by the circuit court. At the time when the bond was taken by the collector, Andrew Torborn was the surveyor of said district for the port of City Point, and continued in that office until his death, which happened after the commencement of the suit on said bond, and before the rendition of judgment thereon, and was succeeded in his office by John H. Peterson, who was appointed and commissioned on the 3d of March, 1811, and qualified and entered upon the discharge of the duties of that office on the 16th of the same month. At the May term of the circuit court, 1814, the whole debt and costs recovered by the judgment, were paid into court by the administrator of Mr. Pegram. Cross petitions were thereupon filed by the district attorney in behalf of the United States, praying the whole sum to be paid to him, or deposited in the bank of Virginia, to the credit of the treasurer of the United States, by the present collector and surveyor of the district of Petersburg, and by the representatives of the deceased collector and surveyor. praying a payment over, and distribution of, the sum so recovered, according to the rights respectively claimed by them. A bill was also filed on the chancery side of the circuit court, by the representatives of the deceased collector and surveyor, against the present collector and surveyor, and the clerk of the court praying a moiety to be paid over to them, or such other portion as they were entitled to by law, and also for general relief. Upon the hearing of the cross petitions, the circuit court overruled the prayer of the motion of the district attorney; the court being of opinion that the United States were entitled only to a moiety of the money, and that the same ought to be paid to the collector of the district, and ordered the clerk of the court, accordingly, to pay the same to John Jones, the present collector, after deducing therefrom one half of one per centum for his commission. And the court being divided in opinion, whether the other moiety should be paid to the said collector to be distributed by him according to law, as this court should direct, or without any direction on the subject, certified the same question to the supreme court. Upon the hearing of the suit in chancery on the bill, answer, and proof, in which none of the facts were controverted, a question occurred before the court, whether the representative of the late surveyor, in right of his intestate, was entitled to receive the moiety of that portion of the penalty which is, by law, to be distributed among the several revenue officers of the district wherein the penalty was incurred; upon which question the court was divided, and the same question was certified to this court. Swann, for Jones et al. The whole body of embargo laws shows, that the collector is, ex officio, to receive penalties and forfeitures; and that he who is to receive, is to have his distributive share as his property of right, and to make the division among the other persons entitled. The term collector means the officer of the law, invested with legal immortality. Official obligations do not attach to the person of the individual, but to the office.a The penalty may be released by the treasury at any time before the collector receives it. Wirt, for Shore's executor et al. The question is, whether, of these two officers, he who supports all the labour and inconvenience shall be entitled to the reward. The death of Mr. Shore did not discontinue his office; his deputy exercised the duties, as by law he was authorized to do, until the rendition of the judgment. The reason of the law is its soul; the intention of the legislature must be regarded; it must have been their motive to stimulate the zeal and exertions of the officers of the customs by an adequate incentive. Policy rendered it more essential in the embargo laws than in the ordinary revenue laws, and the reward was, therefore, attached to the incumbent who detected the offence, and prosecuted. The question is stricti juris, and must be determined

a 4 Cranch, 171. Streslily et al. v. The Unitea States. by the letter of the law. It does not require the collector to live on till the reward is reaped, but the right descends to his representatives. If there be a private information, the common informer gets half the moiety of the officers. If there be no informer, they are entitled upon the ground of like merit. The title of the informer vests upon the information, and the collector takes his place. The law provides that a person entitled to a share, who shall desire to become a witness, must release; he must renounce and lay down his title in order to qualify himself as a witness. Where the forfeitures are recovered in consequence of information by the officers of a revenue cutter, a share is given to them, but no body pretends that their successors would take. It is conceded that the title may be defeated by a remission of the penalty; but that is a condition originally attached by law. The collector dies; but he lives in his deputy, for whose conduct his estate is responsible.

Pinkney, in reply. The argument drawn from an equitable construction, according to relative merit, is unsatisfactory. The law holds out a contingent prospective reward; if the officer dies, it is gone, and the policy of the law is sufficiently satisfied. But the letter of the law is clear and peremptory; the penalty is given to the officer where it was incurred, and not to the seizing officer. At what epoch will you stop in fixing the character of the person entitled? At the seizure? the prosecution? or the rendition of the judgment? At neither: for the word recovered is the emphatic expression, and it is recovered when adjudged and received. Every other construction is arbitrary and fictitious. The president's power of pardoning is a conclusive argument; if the right vested, it could not be thereby devested. The provision, as to officers wishing to become witnesses, signifies nothing. They have an interest; not a vested and absolute interest, but contingent upon the recovery, and if they think fit to sacrifice it, they may be witnesses. The collector did not live in his deputy; the law merely casts the responsibility upon his estate as to the acts of the deputy. STORY, J., delivered the opinion of the court, and, after stating the facts, proceeded as follows: