Page:Federal Reporter, 1st Series, Volume 9.djvu/822

 UNITED STATES V. BIOHAEDSON. 8U7 �duties, and shouM not be recovered as a penalty; and, besides, that he desired the question of the llability of the estate of Mr. Way for the $55,000 offered by him, and accepted by the govemment before his death, should be tested and disposed of by a judicial determination. �There the affair rested for some time, one of the exeeutors of Way having become secretary of the treasury. �October 5, 1874, Mr. Hyde, attorney for the exeeutors, wrote a letter, dated at Washington, to Mr. Bristow, then secretary of the treasury, reeiting briefly the history of the case as shown by the i)apers on file, and ofEering to pay, in settlement of the pending suit, (though claiming that it had, technically speaking, abated,) such sum as should be found due to the United States for duties by a master, or auditor, to be appoiuted by the court. October 8, 1874 Mr. AVilson, then solicitor of the treasury, in a report to the secretary upon this offer, recommended its acceptance on the ground that the suits and claims for penalties had died with Way, and that the compromise might probably have gone too, but if not, it would be harsh and unconscionable to exact the $55,000, uuder all the circumstances. October 13, 1874, he notified the dis- trict attorney, Mr. Sanger, of this offer, and that the secretary had accepted it, and aslied Mr. Sanger to name some suitable person as master or auditor. Mr. Sanger named Mr Bassett, deputy clerk of the district court, and he was agreed on, and the court, at the request of both parties, made the order of reference. Mr. Bassett had one or more hearings in the case, but some disa- greements arose between the parties, and the govemment deelined to proceed further, and brought a suit for the duties, and this suit for the $55,000. The action and order of reference are still open on the docket. �The pleadings in the present action, and the several letters above men- tioned, are made a part of this statement of facts. �It has beeu discovered, since AVay's death, that he owed the govemment about $300 for an inadequate payment caused by a mistake of the offlcers of the customs in respect to an importation of veneers. �Upon these facts the defendants contend that the acceptance did not conform to the offer, and as there is no sufficient evidence that Way consented to a change, the agreement was not complete. The variations were that the govemment agreed to release, specifically, all the known claims, instead of "all claims;" that it required im- mediate payment; and that a part of the sum paid be considered as having been paid for duties, and the remainder only as a penalty. These variations do not seem to me material, or rather to be varia tions. "Ail claims" must be construed to mean known claims, else tho agreement might be a mere leap in the dark. An offer to pay, without more, means cash. With the mode in which the sums paid should be divided, the defendant had no concern. �Both parties agree that all suits and causes of action for penalties and forfeitures died with Way, and that the right of action for duties survived. ��� �