# Jones v. Shore's Executor/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
As the United States have not asserted any claim, the first question for the decision of the court is, whether the present collector and surveyor, the actual incumbents in office, or the representatives of the late collector and surveyor, in right of their testator and intestate, are entitled to the moiety of the money received in satisfaction of the judgment above stated, and now in the custody of the circuit court.
By the express provisions of law, all penalties and forfeitures accruing under the embargo acts, with a few exceptions, not applicable to this case, are to be distributed and accounted for in the manner prescribed by the collection law of the 2d of March, 1799, ch. 122. To this latter act, therefore, the are guments of counsel have been chiefly directed; and upon the true construction of the 89th section of the act, the decision of this cause must principally rest The 89th section enjoins the collector, within whose district a seizure shall be made, or forfeiture incurred, to cause suits for the same to be commenced without delay, and prosecuted to effect; and authorizes him to receive from the court, within which a trial is had, or from the proper officer thereof, the sums so received, after deducting the proper charges, and on receipt thereof requires him to pay and distribute the same without delay, according to law, and to transmit, quarter-yearly to the treasury an account of all the moneys received by him for fines, penalties, and forfeitures, during such quarter. The 91st section declares that all fines, penalties, and forfeitures, recovered by virtue of the act, and not otherwise appropriated, shall, after deducting all proper costs and charges, be disposed as follows, viz., 'one moiety shall be for the use of the United States, and be paid into the treasury thereof, by the collector receiving the same; the other moiety shall be divided between, and paid in equal proportions to, the collector and naval officer of the district, and surveyor of the port, wherein the same shall have been incurred, or to such of the said officers as there may be within the same district; and in districts where only one of the aforesaid officers shall have been established, the said moiety shall be given to such officer.' Then follow provisions referring to the distribution in cases where the recovery has been had in pursuance of information given by any informer, or by any officer of a revenue cutter.
It is argued on behalf of the present collector and surveyor, that upon the true construction of these clauses no title to a distributive share of penalties and forfeitures vests until the money has been actually received by the collector from the officer of the court; and that upon such receipt it vests in the proper officers of the customs who are then in office. And in support of this argument it is further asserted that until this epoch the claim is a mere expectancy and not a right, the interest being in abeyance, uncertain, and contingent. An attempt has been made to press the language of the act into the service of this argument. But it certainly will not support it: the language of the act, in its most obvious import, does not seem to have contemplated any charge in the officers of the customs between the time of the accruing and the receipt of the penalty of forfeiture. It seems principally to have been adapted to cases of the most ordinary occurrence, and it is only by an equitable construction that it can, in aid of the legislative intention, be brought to reach the present case. The act must receive the same construction in relation to forfeitures in rem, as in relation to personal penalties. Both are distributable in the same manner, and subject to the same rules. The case, therefore, will be first considered, in reference to forfeitures in rem.
Whenever a forfeiture in rem accrues, it is by the act made the duty of the collector to seize the thing, and to prosecute a suit therefor, to final judgment. The law contemplates that he may seize, upon probable cause of seizure, not simply in cases of personal knowledge, but upon the information of others. He seizes, however, at his peril, and if the act be not instifiable, he is subject to a personal responsibility for all damages. He is placed, therefore, in a situation in which he is bound to act, and yet is not protected against the legal consequences of his acts. It is unquestionably with a view to stimulate his vigilance, and reward his exertions, that the law has given him a share of the forfeitures recovered by his enterprise and activity. And yet it would follow upon the argument which has been stated, that the collector who seizes might be liable to all the responsibility of the act, in case of a failure, without receiving any of the fruits of his toil, if crowned with success. This certainly would seem to be against the policy of the legislature, as well as against the plainest rules of equity. It is a maxim of natural justice, qui sentit commodum sentire debet et onus; and the words of a statute ought to be very clear that should lead to a different determination. But the case is not left to the result of general reasoning upon the intent and policy of the legislature. It is not true, that the right of a seizing officer to a distributive share is a mere expectancy. By the common law a party entitled to a share of a thing forfeited, acquires by the seizure an inchoate right, which is consummated by a decree of condemnation, and when so consummated, it relates back to the time of the seizure. This principle is familiarly applied to many cases of forfeitures to the crown; and even in respect to private persons entitled to forfeitures, the interest which is acquired by seizure has been deemed a sufficient title to sustain an action of detinue for the property. And it is very clear that the legislature steadily kept in view this principle of the common law; for the act has expressly provided that any officer entitled to a part of the forfeiture may be a witness at the trial; and, in such a case, he shall lose his share in the forfeiture. The law, therefore, deems him a party having a real substantial interest in the cause, and not a mere expectancy-'a fleeting hope that only keeps its promise to the ear, but breaks it to the sense.' It is true, that the act in making distribution of forfeitures speaks of the parties entitled to them by the description of their office; but it cannot, with any colour of reason, be argued that this designation of office meant to exclude a designatio personae. On the contrary, it is most manifest that the act meant to point out the person entitled by a description of his office. The question then recurs, who is the person meant under this description of office? Is it the person who happens to be in office when the forfeiture is received? Or the person who was in office when the seizure was made, and who thereby acquires an inchoate right, which the subsequent judgment ascertained and fixed? The words may be literally applied indifferently to either; but in point of law, they can be properly applied only to him who has, under the same description of office, already acquired a vested title, inchoate, or consummate, in the forfeiture. This construction is fortified by a recurrence to other provisions in the 91st section of the act. It is, in the first place, provided that, in all cases of forfeitures, recovered in pursuance of information given to such collector, (pointing to the collector entitled to a distributive share,) a moiety of the moiety shall be given to the informer. The grammatical connexion of the words, as well as the obvious exposition of the clause, supposes that the collector who receives the information, and commences the suit, is the person entitled to the distributive share of the forfeiture. In the next place it is provided, that when the forfeitures are recovered, in consequence of any information given by any officer of the revenue cutter, one moiety thereof shall be distributed among the officers of such cutter. Can there be a doubt that the persons who were officers at the time of the information, and not those who were officers at the time of the receipt of the forfeitures, are the parties entitled to this moiety? Yet the same reasoning applies here, with equal force, as in the case of the collector. So by the embargo act of the 9th January, 1809, ch. 72. s. 12., forfeitures recovered, in consequence of any seizure made by the commander of any public armed vessel of the United States, are to be distributed according to the rules of the navy prize act of the 22d April, 1800, ch. 33.; and it is clear, beyond all doubt, that the parties so entitled are the officers and crew at the time of the seizure. The analogous rule, in cases of captures, jure belli, is here expressly alluded to, and adopted by the legislature, and that rule stands on the same general foundation with that of the common law. The right of captors to prizes is but an inchoate right, and, until a condemnation, no absolute title attaches. But when condemnation has passed upon the property, it relates back to the capture, and although the parties have died in the intermediate time, the title vests in proprio vigore in their representatives.
Much stress has been laid upon the clauses in the 89th and 91st sections of the collection law of the 2d March, 1799, which authorize the collector to receive from the proper officer of the court the moneys recovered in suits for penalties and forfeitures, and which require him to pay and distribute the same, according to law, among the officers of the customs, and other parties entitled thereto. But these provisions are merely directory to the collector, and do not vest in him any personal right to the money received, which he did not before possess; much less do they authorize the supposition that, until the receipt, no title vested in any person. It might, with as much force and propriety, be urged, that, until the same epoch, no right to the other moiety vested in the United States; for the statute is equally mandatory and precise in this case as in the other. It would, however, be quite impossible to contend, upon any legal principles, that the title of the United States was not, to all intents and purposes, consummated by the judgment.
The same reasoning which has been used in respect to forfeitures in rem, applies to personal penalties; and it is unnecessary to repeat it. The court are clearly of opinion, that the right of the collector to forfeitures in rem attaches on seizure, and to personal penalties on suits brought, and in each case it is ascertained and consummated by the judgment; and it is wholly immaterial whether the collector die before or after the judgment. And they are further of opinion, that the case of the surveyor is not, in this respect, distinguishable, in any manner, from that of the collector. They are, therefore, of opinion, that the representatives of the deceased collector and surveyor, and not the present incumbents in office, are entitled to the distributive shares of the moiety of the money now in the registry of the circuit court.
The next question is as to the proportions in which this moiety is to be divided between the representatives of the collector and surveyor. Whatever may have been the practice in the district of Petersburg, the words of the act admit of no reasonable doubt. The moiety is to be divided in equal proportions between the collector, naval officer, and surveyor, or between such of the said officers as there may be in the district. There was no naval officer in the district of Petersburg, and, consequently, the division must be, in equal proportions, between the collector and surveyor.
It is the unanimous opinion of this court, that it be certified to the circuit court, that it is the opinion of this court,
1st. In the case of the United States against Joseph Jones and others, that the moiety of the money now remaining in the custody of the circuit court, in the proceedings in the case of the United States, appellants, against Joseph Jones and others, mentioned, should be paid to the said Joseph Jones, collector of the district of Petersburg, to be, by him, divided in equal proportions between Thomas Shore, as he is executor of the last will and testament of John Shore, deceased, and Reuben M. Gillian, as he is administrator of the goods and effects of Andrew Tarbone, deceased.
2d. In the case of Thomas Shore and another against Joseph Jones and others, that the representative of the late surveyor, in right of his intestate, was entitled to receive one moiety of that portion of the panalty in the proceedings mentioned, which is by law to be distributed among the several revenue officers of the district wherein the penalty was incurred.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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