United States v. Mora

ERROR to the Circuit Court of the United States for the Southern District of New York.

This is a suit by the United States on a bond dated and executed March 4, 1863, exacted by the collector of the port of New York, as a condition precedent to granting a clearance to the vessel 'Sarah Marsh,' laden with a cargo of merchandise, bound to the port of Matamoras, in Mexico.

To support the issues on its part, the plaintiff proved that on the twenty-third day of May, 1862, the then Secretary of the Treasury had instructed the then collector of customs at the port of New York as follows:--

'TREASURY DEPARTMENT,

'WASHINGTON, D. C., May 23, 1862.

'SIR,-In pursuance of the provisions of the proclamation of the President modifying the blockade of the ports of Beaufort, Port Royal, and New Orleans, and of the regulations of the Secretary of the Treasury relating to trade with those ports, no articles contraband of war will be permitted to enter at either of said ports, and you will accordingly refuse clearance to vessels bound for those ports, or either of them, with any such articles on board.

'Until further instructed, you will regard as contraband of war the following articles; viz., cannons, mortars, fire-arms, pistols, bombs, grenades, fire-locks, flints, matches, powder, saltpetre, balls, bullets, pikes, swords, sulphur, helmets, or boarding-caps, sword-belts, saddles and bridles (always excepting the quantity of the said articles which may be necessary for the defence of the ships and of those who compose the crew), cartridge-bag material, percussion and other caps, clothing adapted for uniforms, resin, sail-cloth of all kinds, hemp and cordage, masts, ship timber, tar and pitch, ardent spirits, military persons in the service of the enemy, despatches of the enemy, and articles of like character with those specially enumerated.

'You will also refuse clearance to all vessels which (whatever the ostensible destination) are believed by you, on satisfactory ground, to be intended for ports or places in possession or under control of insurgents against the United States; or that there is imminent danger that the goods, wares, and merchandise, of whatever description, laden on such vessels, will fall into the possession or under the control f such insurgents; and in all cases where, in your judgment, there is ground for apprehension that any goods, wares, or merchandise shipped at your port will be used in any way for the aid of the insurgents or the insurrection, you will require substantial security to be given that such goods, wares, or merchandise shall not be transported to any place under insurrectionary control, and shall not, in any way, be used to give aid or comfort to such insurgents.

'You will be especially careful, upon application for clearances, to require bonds with sufficient sureties, conditioned for fulfilling faithfully all the conditions imposed by law or departmental regulations from shippers of the following articles, to the ports opened, or to any other ports from which they may easily be, and are probably intended to be, reshipped in aid of the existing insurrection; namely, liquors of all kinds, coals, iron, lead, copper, tin, brass, telegraphic instruments, wires, porous caps, platina, sulphuric acid, zinc, and all other telegraphic materials, marine engines, screw propellers, paddlewheels, cylinders, cranks, shafts, boilers, tubes for boilers, fire-bars, and every article, or any other component part of an engine or boiler, or any article whatever which is, can, or may become applicable for the manufacture of marine marine machinery, or for the armor of vessels.

'I am, &c.,

S. P. CHASE,

'Sec't'y of the Treasury.

'HIRAM BARNEY,

'''Coll. of N. York''.'

That the following bond was taken by the said collector of customs, as the condition upon which he had granted a clearance to the 'Sarah Marsh' to proceed from the port of New York to the port of Matamoras, in Mexico:--

'Know all men by these presents, that we, Leon Haas, Jr., as principal, and Foster Mora and W. M. Congreve, all residing and owning real estate in the city of New York, are held and firmly bound unto the United States of America in the sum of twenty-one thousand eighty-one 74/100 ($21,081.74) dollars, lawful money of the United States of America, to be paid to the said United States of America or their assigns, for which payment, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, firmly by these presents; sealed with our seals, dated the fourth day of March, one thousand eight hundred and sixty-three.

'Now, the condition of this obligation is such that if the ship or vessel called the 'Sarah Marsh,' laden with various packages of merchandise, value $10,540.87, enumerated in the shipper's manifest of said Leon Haas, Jr., shall proceed from the port of New York to Matamoras, in Mexico, and shall land the same at the last-mentioned port of Matamoras for consumption, and if the same shall be consumed within the republic of Mexico, and if the said shippers shall, within seven months from the date hereof, produce satisfactory proof to the collector of the port of New York, by consular certificate or otherwise, that the same has been landed and entered for consumption, and actually converted to domestic use, within the republic of Mexico, and the duties thereon paid, and if all laws and departmental regulations shall be strictly obeyed; and if all the conditions of the clearance of said merchandise shall be performed, and specially if said merchandise or any part thereof shall not be transported to any place under insurrectionary control, and if none of said merchandise shall be used in any way, with the consent or knowledge of the shippers or their agents, to give aid or comfort to parties now in rebellion against the United States, then this obligation to be void; otherwise to be and remain in full force and virtue.'

The plaintiff having offered in evidence a partial manifest of the cargo of the 'Sarah Marsh' relative to the goods represented by the bond,-which manifest showed the portion of the cargo in question to be of the value of $10,540.87, and also proved that she was a general ship, and that other parts of her cargo were owned by others than the principal and sureties on the bond in question,-offered to prove that the 'Sarah Marsh' proceeded out of the port of New York toward Matamoras, which was conceded by the defendant. The plaintiff then offered to prove that that part of her cargo referred to in the bond, and marked ??, value stated at $10,540.87, enumerated in the shipper's manifest of Leon Haas, Jr., was carried in her in March or April, 1863, to the mouth of the Rio Grande; that it was not landed at Matamoras for consumption, nor consumed within the republic of Mexico; that the shippers did not, within seven months from the date of said obligation, produce satisfactory proof to the collector of the port of New York, by consular certificate, or in any manner whatever, that said merchandise had been landed and entered for consumption and actually appropriated to domestic use within said republic, or that the duties thereon had been paid; that the laws and departmental regulations in respect to non-intercourse with portions of the United States in rebellion, and particularly in respect to Texas, were not strictly, or in any manner, obeyed in respect to said goods, and that none of the conditions of the clearance were performed, and especially that said merchandise, and large parts thereof, were transported by the principal in the bond, and by his authorized agents, directly to places under insurrectionary control, and were used with his consent and knowledge, and with the consent and knowledge of his agents, to give aid and comfort to parties then in rebellion against the United States, and specially that part of the cargo represented by the bond was sold to the military authorities of the so-called Confederate States in Brownsville, Texas, some time in the month of April, 1863; but the defendant objected, the objection was sustained, and the plaintiff excepted.

Upon motion of the defendant, the court then directed a verdict for the defendant, to which direction the plaintiff excepted.

Thereupon the jury rendered a verdict for the defendant, and the plaintiff sued out this writ.

The statutes bearing on the question of the collector's authority to require the bond are referred to in the opinion of the court.

Mr. Assistant-Attorney-General Smith for the plaintiff in error.

Under the act of May 20, 1862 (12 Stat. 404), the collector of the port of New York had not only authority to require a bond before granting the clearance, but to refuse a clearance altogether. Bas v. Steele, 3 Wash. 395; Hickey v. Huse, 56 Me. 496; United States v. Eliason, 16 Pet. 291; United States v. Freeman, 3 How. 556.

The bond in suit certainly falls within the 'reasonable security' which, by the third section of that act, the Secretary of the Treasury can require, and it is justified by the regulations which that section authorized him to make. When made, those regulations had themselves the force of law. Gratiot v. United States, 4 How. 80.

The bond is governed by the rules of the common law. Cox v. United States, 6 Pet. 172. Given by the owner of the goods as his own obligation, and accepted by the collector as such, it was a voluntary undertaking, good and enforceable at law. United States v. Hodson, 10 Wall. 395; Hamilton v. Dillin, 21 id. 73; United States v. Woollen Goods, 1 Paine, 435, and cases cited.

A bond, although not in exact conformity with the statute, may be good at common law. Any part of it not required by statute may be rejected. United States v. Tingey, 5 Pet. 115; Kavanagh v. Sanders, 8 Me. 422.

Mr. F. R. Coudert, contra.

The bond sued on, being executed in double the amount of the value of the goods, was not authorized by the act of May 20, 1862. Even if the pleadings averred that it was taken under the regulations which the Secretary of the Treasury, by the third section of the act, was authorized to make, and those regulations were admissible in evidence, they could not go beyond the provisions of the second section, authorizing the requirement of a bond from the master or owner of the vessel in a penalty equal to the value of the cargo, nor create a liability, nor impose a burden not contemplated by the law itself.

The bond sued on is in no sense a voluntary one. Dickinson v. United States, 1 Brock. 177; Taber v. United States, 1 Story, 1; United States v. Gordon, 7 Cranch, 287; United States v. Morgan, 3 Wash. 10.

Where a statute prescribes the condition of a bond, its provisions must be strictly complied with, or the bond will be void. Barnard v. Viele, 21 Wend. (N. Y.) 88. The bond in suit, being highly penal, must be strictly construed.

MR. JUSTICE BRADLEY delivered the opinion of the court.