Page:Federal Reporter, 1st Series, Volume 7.djvu/726

 714 FEDERAL REPOSTBB. �position to claim a share of the fine, I had supposed that in order to preclude a person from receiving the informor's share he must have been a permanent officer of the govern- ment, holding his authority by virtue of a commission or appointment by a chief officer of the customs. Suoh, I am informed, bas been the ruling of the treasury department in this particular, but the courts seem to have uniformly taken a different view, and I am not disposed to dissent from their conclusions. Even before this act was passed, and when officers might be considered as informers, it was held by Judge Lowell, in the U. S. v. 100 Barrels of Distilled Spirits, 1 Low. 244:, that they could only be considered informers where they inoidentally and not in the direct prosecution or course of their duty, or of any special retainer for that pur- pose, made a discovery. �" As if an inspector, put on board a vessel meroly to keep the cargo aafely, discovers smuggled goods concealed, or where an officer sent to inqulre into a particular charge discovers something entirely diflerent and before unsuspected, or where he is told by some one as a friend and not as an offloer, or the facts which his informant, no', wisliing to be k aown, refuses to bring forward himself, but tells him for the very pur- pose of enabling him to give the information in his own name. In these cases an offloer may be an informer." �" Sfll," he observes, " it isciear that an offloer cannot always be consid- ered an inlormor raerely because he, as an officer, acquires information nse- ful to the gov<>.rnment. If this knowledge is acquired in the ordinary dis- charge of hIB duty, touching the very subjeot-matter, or under a special retainer to investigate that matter, I cannot hold him entitled to a gratu- ity." See, also, U. 8. v. 34 Barrels of WMshy, 9 Int. Rev. Rec. 169 ; U. S. V. Funkhouser, 4 Biss. 176, 183. �The question was direotly passed upon in the case of four cutting machines, 3 Ben. 220, in which Judge Blatchford held that a person whose duty it is to disclose information, and who violates such duty if he does not disclose it, cannot be an informer, and that the person who imparted the in- formation 80 as to be an informer, must be one who has imposed upon him no officiai duty to impart the information. �Now it would appear that if Brakeman was under pay of the government and received a salary or wages of any kind for his services in endeavoring to ferret out these frauds, any ��� �