Page:Federal Reporter, 1st Series, Volume 9.djvu/821

 806 FBDBBAL REPOETEB. �ofHcer for an estimate o£ the duties withheld upon the several lots of tobacco involved, and that these be paid into the treasury and the balance to be treated as a penalty." May 28th the secretary wrote the solieitor: " I have received your communication of the twenty-sevenlh instant, returning the proposai of Mr. Samuel A. Way, of Boston, to pay one hundred and flfty-flve thousand dollars, ($155,000,) as a settlementof all claimsof the United States in consequence of the illegal importation of a quantity of tobacco at Boston, in the vessels and at the times designated below." Then follows a list, as in Way's letter of May 8th, and a statement of the facts showing the propriety of the settlemeut, adding: "In consideration of those facts, and the recom- mendations by yourself, the United States district attorney, and the collector of customs at Boston, respectively, in favor of the settlement, I have con- cluded to compromise the clairns on the basis proposed, and you are requested to instruet the district attorney accordingly." He directs that the duties due the United States shall be deducted by the collector of customs, and the resi- due of the sums received should be treated as theproceeds of fines, peiialties, and forfeitures. In calling the offer $155,000, the secretary included the $100,000 already paid. �May 29, 1872, the solieitor inclosed a copy of this letter to Mr. Mason, and instructed him to cause the compromise to be carried out in the manner therein indicated ; " the money to be paid at once, and the duties remaining due on the several importations to be estimated by the collector of customs and deducted and paid into the treasury as duties, the balance to be treated as a penalty, etc. Please report to this office upon settlement being made as directed." �These letters were received by the district attorney on Saturday June 1, 1872, and Way was overheard discussing or disputing with him, on that day, about terms of payment, from which I infer that the letter of the secretary, or its substance, had been communicated to him. I do not find, in the terms of the declaration, that the acceptance was by him thereupon duly ratifled and conflrmed. I do not know whether it was conflrmed or not. �Way atteuded to no business after that Saturday. He was taken 111 on Suuday and died on Tuesday. Mr. Mason died during the next year. �The defendants, as execntors of Way, made several written ofEers to the secretary. January 31, 1873, they offered to pay $11,000 in gold, in full set- tlement and compromise of all suits, clairns, dues, duties, penalties, and demanda of the United States against Way or liis estate, heirs, or exeoutors. This ofEer was referred to Mr. Hurd, assistant district attorney, and, while he was considering it, a fresh offer was made to him and transmitted with his report, and ho advised its acceptance. His report was elaborate, expressing the opinion that the suit for $300,000 penalties had abated by the death of Way; that the court would not be likely to enter judgment for $55,000 nunc pro tune, in that suit, because it would be a great hardship to enforce such an agreement made under circumstances of excitement, etc.; that no action could be maintained on the compromise as a contract. The oiier which he approved was to enter judgment for the United States, in the pending suit, for the sum of $13,500. The soliciter answered, February 17, 1873, that the secretary rejected this offer; that the S13,500 was the estimated amount of ��� �