# United States v. Morris (23 U.S. 246)

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## Concurring Opinion

    Johnson
United States Supreme Court
23 U.S. 246
United States v. Morris
ERROR to the Circuit Court for the Southern District of New-York.
This was an action brought against the defendant, in the Court below, as Marshal of the Southern District of New-York, for a misfeasance in neglecting to proceed on a venditioni exponas issued out of the District Court of the United States for the District of Maine, requiring him to sell the goods and chattels of Andrew Ogden, Abraham K. Smedes, and Thomas C. Butler, which he had levied upon by virtue of certain executions issued against them, in favour of the United States, on a judgment recovered in the said District Court of Maine, and which goods and chattels remained in his hands for want of buyers, according to his return on said executions. The misconduct, or neglect of duty, alleged against the Marshal, was, that he did not sell the property so levied upon, according to the command of the writ, but delivered the same up to the defendants, discharged from the execution. The declaration stated the judgment to have been recovered in the September term of the Court, in the year 1817, for 22,361 dollars 75 cents, damages, and which, in part, to wit, in the sum of 11,180 dollars 87 cents, remained in full force, not reversed, paid off, or satisfied, to the plaintiffs, and that execution to that amount remains to be done. The venditioni exponas, as was alleged, was put into the hands of the Marshal on the 13th day of August, 1819.
The pleadings in the cause show, that Andrew Ogden, of the city of New-York, in or about the month of June, in the year 1813, imported into Portland, in the District of Maine, certain goods and merchandise in the brig Hollen, which vessel, as well as the goods, belonged to him. These goods, together with the brig, were thereupon seized as forfeited to the United States, on the ground that the goods had been imported in that vessel, in violation of the non-intercourse acts, then in existence. The goods and vessel were libelled in the District Court of Maine, on the 6th of July, 1813, and on the 19th of the same month were delivered up to Andrew Ogden, after having been regularly appraised, upon his having executed, together with Abraham K. Smedes, and Thomas C. Butler, a bond for their appraised value. The vessel and goods were, afterwards, on the 27th of May, 1817, condemned as forfeited to the use of the United States. And such proceedings were thereupon had, that, in the following September term of the Court, a judgment was entered upon the bond of appraisement for 22,361 dollars 75 cents, with costs.
The defendant, Morris, pleaded the general issue, and a special plea in justification, that the forfeitures had been remitted by the Secretary of the Treasury, setting out in haec verba, two warrants of remission, which were duly served upon him before the return day of the venditioni exponas, and averring a compliance on the part of the defendants, with all the terms and conditions required by the warrants of remission. All which were duly set forth in the return on the venditioni exponas, before the commencement of the present suit.
To this special plea, a replication was filed, stating, in substance, that at the time of the forfeiture, seizure, and condemnation, of the brig Hollen, and the goods imported in her; and, also, at the time of their condemnation, and the entering up of the judgment on the bond for their appraised value, and of the issuing of the several writs of execution, and at the time of the making and issuing the said warrants of remission, and of the service thereof on the defendant, &c. Isaac Ilsley, and James C. Jewett, were the collector and surveyor of the port of Portland, and, as such; entitled to one half of the said forfeiture; and that the said several executions were issued for their benefit, and solely to collect the said sum of 11,180 dollars 87 cents, for their own separate use, and that the defendant had notice thereof when the said several writs of execution were delivered to him to be executed; setting out, also, two endorsements on the execution, one signed by the District Attorney of Maine, notifying the defendant, that the execution was for the benefit of the said Collector and Surveyor, and directing the Marshal to collect the same by their order. The other was signed by the Collector and Surveyor, requiring the Marshal to collect the execution forthwith, and deposit the money agreeably to the command of the writ, and notifying him, that the property in the execution was in them, and directing him to receive orders from them, and from no other person whatsoever, in whatever related to the said execution. And it was then averred, that the present suit was for the purpose of enabling the Collector and Surveyor to recover their damages for the injury they had sustained by reason of the misfeasance of the defendant, in the declaration mentioned, and not for the benefit, use, or behoof, of the said plaintiffs.
To this replication the defendant demurred specially, and stated the following causes of demurrer: (1.) For that the replication is a departure from the declaration, in this, that the declaration proceeds upon a cause of action in favour of the United States; whereas the replication proceeds upon a cause of action in favour of the said Ilsley and Jewett, &c. (2.) For that the replication discloses no lawful and sufficient authority for the said I. and J., to prosecute the said action against the said T. M., &c., and in the name of the United States. (3.) For that the declaration proceeds upon the ground, that the several writs of execution therein respectively mentioned, were issued upon a judgment obtained for the use of the United States, and, therefore, according to the act in such case made, &c., might lawfully run and be executed in any other State or territory of the United States, than the said District of Maine, in which the said judgment was obtained. Whereas the replication discloses the fact, that the said judgment was not obtained for the use of the said United States, but for the use and benefit of the said I. and J., and, therefore, could not run and be executed in any other State, &c. (4.) That the suit is prosecuted in the name of the United States, by an attorney, on record, other than the District Attorney of the United States for the Southern District of New-York.
A joinder in demurrer having been filed, judgment was given for the defendant in the Court below, and the cause brought by writ of error to this Court.
On the part of the plaintiff in error, it was contended, that the judgment ought to be reversed,
1. Because the Secretary of the Treasury had no power to remit the share of the forfeiture which belonged to the custom-house officers.
2. Because the action was rightly brought in the name of the United States, by an attorney of the Court below, specially authorized to prosecute the suit by an order of one of the Judges of that Court.
3. Because the replication is not a departure from the declaration, proceeding upon a different cause of action from that stated in the declaration.
Mr. Wheaton, for the plaintiffs in error, stated the principal question in the cause to be, whether, after a definitive sentence of condemnation, in a revenue cause, the Secretary of the Treasury has a right, under the Remission Act of the 3d of March, 1797, c. 361. [lxvii.] to remit the forfeiture so as to affect the right of the officers of the customs, under the Collection Act of 1799, c. 128. [cxxviii.] ss. 89. and 91., to a moiety of the fines, penalties, and forfeitures, recovered under the act. He insisted, that the right of the Collector, &c. accruing by the seizure, was consummated by the final sentence of condemnation, and became an absolutely vested right, which could not be devested by the remission after such sentence. This had been expressly determined in the Circuit Court for the First Circuit; and though the case had not hitherto been presented to this Court, there were other analogous cases which settled the doctrine, that, as between the representatives of a deceased Collector, and his successor in office, or as between a removed Collector and such successor, the share of the forfeiture to which he is entitled attaches, and is consummated by the sentence of condemnation. This went upon the principle, that it became an absolutely vested right, by relation back to the time of seizure. If it were an absolutely vested right, it must be vested as against the government. It is not vested, even as against the government, at the time of the seizure. That only gives an inchoate right, which may never become absolute for want of a condemnation, or may be intercepted by a remission before condemnation. The forfeiture has, for certain purposes, relation back to the commission of the offence. As between the offender and all persons claiming as purchasers of the property, and the government, the forfeiture attaches at the moment of delictum. But this proceeds from the necessary strictness of all fiscal regulations, and does not prevent a remission before condemnation. The delictum does, indeed, devest the proprietary interest from the owner, so as to overreach the claims of subsequent purchasers; but it does not, therefore, follow, that the share to which the officers of the customs may become entitled, vests in them eo instanti. Their title may never vest, by reason of three contingencies: (1.) There may be no seizure. (2.) There may be a remission after the offence, and before condemnation. (3.) There may be no condemnation. If there be no seizure, of course no title vests. If there be a remission before condemnation, as no title has yet vested except against subsequent purchasers, it purges the offence entirely, by relation back to the delictum. If there be no condemnation, the inchoate title is never ripened into maturity. But if there be a remission after condemnation, the rights of the seizing officers have become absolute, and the remission purges the offence (if it has any effect at all) only so far as the government is concerned.
This would appear from the plain reading of the Collection Act of 1799, c. 128. [cxxviii.] ss. 89, 90, 91. which directs the Collector to prosecute for breaches of the revenue laws, and to receive the sums recovered, and to pay and distribute the same among the different persons entitled. It must be admitted, on all hands, that the right must absolutely vest at some period. The Court have already rejected the notion that it does not vest until the actual receipt and payment over of the money. There could, therefore, be no other epoch but that of the sentence of condemnation, which, if definitive, or unappealed from, fixed and ascertains the rights of all parties. Admitting, for the sake of the argument, that the government may afterwards remit, so far as its own rights are exclusively concerned; it cannot certainly be concluded, from the terms of the Remission Act, that the government intended to revoke its bounty, conferred absolutely upon its officers by a soleman statute for great purposes of public policy. It is immaterial what the Secretary of the Treasury intended to do. The question is, what was he authorized to do. The question is, what was he authorized to do by the law under which he acted.
All the analogies of the common law would be found to repel the idea that the remission could devest the rights which had become ascertained and fixed by the sentence of condemnation. Pardon and remission are synonymous terms, and their legal effect upon the rights of parties must be the same. 'Pardon' is defined to be 'a work of mercy, whereby the king forgiveth any offence, &c. right, title, debt, or duty.' The power which is given to the President by the constitution, of granting pardons for offences may, or may not, extend to revenue cases; but whether the pardon is granted by the President. or by his minister, is immaterial. It is still the act of the government, and it can have no greater effect in the one case than in the other. It is laid down that a pardon does not discharge the thing in which the subject has a property or interest; as if a suit be in the Spiritual Court for tithes, a legacy contract, or matrimony, &c. or for dilapidation. So, if an incumbent accepts a plurality, the interest of the patron to present is not discharged by a general pardon. A penalty, upon a conviction for deer stealing, is not discharged by a pardon; for it is a forfeiture to the party grieved. The king cannot, by his pardon, discharge an action commenced qui tam upon a penal statute, except for the king's moiety or part. Nor penalties to be divided between the informer and the poor of the parish. So a pardon does not discharge a thing consequent or incident in which the subject has an interest vested in him; as costs taxed in the Spiritual Court, a pardon of the offence does not discharge the costs. And this, though the party appeals after the taxation of costs, so that the sentence is suspended by the appeal. So, if the party appeals after costs taxed, and then the pardon comes, and upon the appeal the former sentence is annulled, and costs given to the appellant; these costs are not discharged by the pardon: for the costs being taxed in the original suit, the party had a right of appeal, which was not taken away by the pardon; and, consequently, has a right to the costs. So, on a proceeding in rem, in the Exchequer, the crown's share only of a forfeiture is pardoned, by an act of general pardon, but not the informer's on an information previously filed. And in prize proceedings, the condemnation is held to vest the right in the captors so absolutely, that the government cannot release. Thus, in the case of the Elsebe, (one of the famous Swedish convoys) Sir W. Scott determined, that the crown might interpose to release the captured vessels before, but not after, a final adjudication.
As to the technical questions which had been raised by the special demurrer upon the pleadings, they were all involved in the question upon the merits. If the remission was void as to the custom-house officers, they had a right to sue in the name of the United States; or, rather, the latter are suing in their own name, to give effect to their own bounty granted to those officers, who are prosecutors from the beginning in the name of the United States. They are not only privies, but parties, and are concluded by a sentence of acquittal as well as of condemnation. But they may also be considered as the assignees of the United States, and then the question whether they are to sue in their own name, or in that of the United States, will depend upon the forms of proceeding in analogous cases. By the civil law, on the cession of a debt, the assignor impliedly ceded to the assignee all his rights of action as incidental to the cession. The assignee became what was called procurator in rem suam, and sued in the name of his assignor. So, in England, and in this country, it has along since been settled, that the assignee of a chose in action may sue in the name of the assignor, who has no right to interfere with the suit. By the ancient common law, the king could assign a chose in action, though a subject could not. But the assignee of the king took it with all the high prerogative remedies. Thus, it is laid down, that the king's grantee may sue an obligation, &c. granted to him, in his own name, or may prosecute in the king's name; 'for the grant of the statute, or debt, is a warrant to him to prosecute process in the king's name.' Thus, where a debt due to an outlawed person was granted by the king; held, that the grantee might levy it in his own name, or, by extent, in the king's name, 'although he hath not any words in his grant to sue it in the name of the king, as is usual in such cases.'
As to the alleged departure in pleading, which is relied on as one of the causes of demurrer, the objection is, that the replication sets up a cause of action in the custom-house officers, whilst the declaration proceeds on a cause of action for the United States. The answer is, that the suit being here brought in the name of the United States, whose duty and interest it is to prosecute for the benefit of the officers, (who are their grantees,) notwithstanding the remission, the cause for action stated in the replication is just as much in favour of the United States as that set up in the declaration. How, then, stand the pleadings? (1.) The declaration setting up a cause of action in favour of the United States. (2.) A plea of remission by the United States. (3.) A replication, admitting the fact of remission, and affirming the cause of action in favour of the United States, as set up in the declaration, with a new circumstance, viz. a right of third persons, which invalidates the remission so far as they are concerned. This new matter is asserted, not by the officers, but by the United States themselves, who sue precisely as if the parties had not performed the conditions on which the remission was granted, and it had become totally void. It was not necessary that this new matter should have been stated in the declaration. In declaring, it is only necessary to set out enough to maintain the action. In an action for not executing a writ of execution, it is sufficient to set out the judgment, execution, and facts of neglect or misfeasance. Even stating the judgment is merely inducement. It is sufficient to state concisely the circumstances which give rise to the defendant's particular duty or liability. The remission was a matter of defence which it was incumbent on the defendant to set forth. Successive pleadings are designed for this verypurpose. The office of the declaration is to set forth the cause of action merely, of the plea to avoid it, and of the replication to avoid the plea. Thus, in debt on bond for the performance of covenants, the plaintiff declared for the penalty. The defendant craved oyer, and pleaded general performance. The plaintiff replied, setting forth particular breaches, and it was held good. The declaration in the present case pursues the most approved forms, and with more circumstantiality than usual. Departure is where the plea contains subsequent matter, which does not maintain or fortify the matter in the declaration. But here it does maintain it, and, at the same time, avoids the bar. The bar is remission; the replication shows, that it is no answer to the declaration. In Winch v. Keeley, in assumpsit, defendant pleaded, that plaintiff had become a bankrupt, and assigned all his effects, under the statute, to his legal assignees; plaintiff replied, that the suit was brought by him for the use of another party, to whom he had transferred the debt before the bankruptcy. The replication was held good, and the objection of departure was not even mentioned at the bar.
On the part of the defendant, it was insisted, that the judgment ought to be affirmed, for the following reasons:
1. Because the Secretary of the Treasury had a right to remit the forfeiture in question, notwithstanding the judgment of condemnation previously rendered, as stated in the pleadings.
2. Because, the whole case, on the part of the Collector and Surveyor of Portland, proceeds on the ground, that the remission by the Secretary is binding upon the United States, and discharges their moiety of the forfeiture; but has not that effect on the other moiety claimed by them; thus giving a construction to the remission, inconsistent with its own terms, and the act under which it was granted. According to that act, the remission must be valid to the whole extent of the power exercised under it, or not at all; as it is admitted, therefore, to be good in part, it follows that it is good for the whole.
3. Because such a remission is not like a pardon, nor is it to be governed by the same rules; but is equivalent to the judgment or decree of a competent tribunal, that no forfeiture should be enforced, inasmuch as it was without wilful negligence, or any intention of fraud, in the person or persons incurring the same.
4. Because, as far at least as it relates to the act of Congress, vesting in the Secretary of the Treasury the remitting power, as therein mentioned, the custom-house officers have no vested rights in any forfeiture, until not only condemnation, but the receipt of the money produced by a sale of the forfeiture, or collection of the bond substituted for it, before which time the Secretary has full power to remit; and, having exercised it in this case, the Collector and Surveyor of Portland are equally bound by it as the United States.
5. Because, if the said Collector and Surveyor of Portland had any vested rights in the forfeiture in question, notwithstanding the remission, then they ought to have enforced them by an action in their own name, and not in that of the United States.
6. Because, the condemnation of the brig and goods being to the use of the United States, and the recovery in the bond being also in the name of the United States, they became trustees for the Collector and Surveyor of Portland, for whatever rights or interest they had therein; and these, whatever they were, were discharged by the remission of the Secretary, inasmuch as the release of a trustee is, at law, a bar of the rights or interest of his cestui que trust, and especially in a case where fraud is neither charged nor pretended.
7. Because, this being an action to recover damages for a misfeasance, if the United States themselves could sustain it, yet, it being, in its nature, incapable of assignment, they could not transfer to the said Collector and Surveyor such right of action, and authorize its prosecution in their name; much less can it be prosecuted without any such assignment or authority.
8. Because, if the United States could themselves sustain such an action, the said Collector and Surveyor would be entitled to no part of the damages recovered; for such damages would not be the forfeiture, nor the proceeds of the bond which was substituted for it; to a share of which only they are by law entitled. Of course, therefore, they cannot sustain the present action to recover damages for their own private benefit, in the name of the United States, which, if recovered by the United States, they would be entitled to no share of.
Mr. Emmett and Mr. D. B. Ogden, for the defendant, stated, upon the first point, that it was remarkable, and might be useful for interpreting the law, that the question as to the power of the Secretary to remit, after sentence, was never raised until subsequently to the judgment of this Court in Jones v. Shore, and more especially until after what fell from Story, J. in the Margaretta. That no such doubt was conceived to exist at the bar before the case of Jones v. Shore, appears from the arguments of all the counsel in that case, which admit, that the right was not so vested as not to be defeated by a remission. An expression there attributed to Mr. Pinkney, as to the President's power of pardoning, leads to an examination of the distinction between this power of remission and the pardoning power. The power of pardoning is a prerogative given to the President by the constitution, analogous to that exercised by the British, and other sovereigns. It is an act of grace and mercy, founded on the fact of guilt and crime, but exercised from other considerations than those which govern a remission by the treasury. It is laid down, that 'the king, by his prerogative, may grant his pardon to all offenders attainted or convicted of a crime, where he has hope of their amendment.' The remission proceeds on the ground of moral innocence, and is to be only a consequence of it. The Secretary of the Treasury has no power whatever, except where, in his opinion, from the judicial statement of facts, the forfeiture 'shall have been incurred without wilful negligence, or any intention of fraud in the person or persons incurring the same.' A pardon being an act of grace and mercy to an acknowledged criminal, it is but just that it should not disturb the rights of others, founded on the fact of that guilt, and their industry in detecting it; but where the remission is founded on moral innocence, the justice of the case is the other way. In this respect, there ought to be no difference whether a condemnation was had or not; for, although a sentence of condemnation may establish a violation of the letter of the revenue laws, the remission proceeds on the ground, that it establishes no guilt, and the petition for the remission must admit all the facts on which conviction could be founded. The remission is intended to be, and is, in fact, a judicial decision. It is the policy of the revenue laws to make certain acts subject to forfeiture and penalties. It adopts this course, in order to relieve the government from the onus of proving, that those acts were coupled with a criminal intent; and to oblige the party suffering to prove the innocence of his mind, by such evidence as would satisfy the proper officer of the government itself. In analogy to the jurisdiction of a Court of equity to take cognisance of a judgment at law, and relieve against it on principles which the Courts of law could not have taken into consideration, the Secretary of the Treasury is empowered to administer equitable relief, on principles which the revenue Courts could not apply; but which go to the entire destruction of all guilt, and ought, therefore, to go to the entire remission of all punishment. The preliminary proceedings are all judicial, by petition to the District Judge, and by examinations before him: and, like an analogous suit in equity, all parties interested are brought before the Court to assert their rights, and contest the justice of the application. The officers of the customs, having notice, and the liberty of contesting the matter, are parties to the suit or application, and can no more complain that they are deprived of vested rights, than they could where a Court of equity decreed a perpetual injunction on a judgment at law.
The statute, having thus provided for making all persons interested parties to the suit, uses the most general language possible to cover the entire remission of the forfeiture. The prayer of the petition extends to the remission of the whole, and the power given to the Secretary is to remit 'such fines,' &c. The proviso in the 3d section shows the extent to which it was intended to protect vested interests, or to consider them as vested, viz. where a prosecution had been commenced, or information given, before the passing of the act. Every information, seizure, or prosecution, subsequent to the passing of the act, was followed up, subject to the provisions of that act. It formed a limitation upon the extent of vesting the interests of the prosecutors, or, to use the expression of one of the counsel, in Jones v. Shore, 'it is a condition originally attached by the law,' and attached, whether the interest became originally vested by the seizure, the condemnation, or the recovery, and receipt of the money.
To what extent is the vesting? It is decided in Van Ness v. Buel, that the Collector acquires an inchoate right by the seizure, which, by the subsequent decree of condemnation, gives him an absolute vested title to his share in the forfeiture; and it is also determined, in Jones v. Shore, that the right to share in the forfeitures and penalties is given to the Collector who made the seizure, and not to him in office on the receipt of the money. These adjudications were as between officers themselves, and not between an officer and the owner of the thing seized. But they establish the principle, that the right made absolute by condemnation was that, and only that, which had become inchoate by seizure. That inchoate right was, under the statute, subject to be destroyed by remission according to its provisions, and therefore that made absolute must be subject to the same provisions.
But the vesting of the right, as laid down in the case of the Margaretta, does not take place before a final judgment or sentence; and the same epoch is assigned in the case of the Elsebe, for the vesting of prize interests in cases of capture. Now, prize Courts can take notice of all equitable considerations, but a revenue Court cannot. Notwithstanding condemnation, then, it remains to be inquired, whether there was any criminal intent. If innocence be alleged, and the proper proceedings founded on it be instituted, until those proceedings are decided upon, there is no final adjudication, within the spirit and meaning of the act.
Another consideration shows that the remission must operate to extinguish the rights of the officers of the customs. They could maintain no action for the forfeiture as in their own names. The forfeiting party has nothing to do with them: he forfeits only to the United States, and it is only as between the United States and the officers, that the latter have any claim. In this respect there is a material difference between our act and the British revenue laws. By the British statute, one half is forfeited to the use of the crown, and the other to the use of the informer. In the Exchequer, the form of proceeding is to adjudge a moiety of the forfeiture to the seizors, or informer, by the sentence itself, and it becomes a vested right in them, by relation back to the filing the information. But in this country, the utmost that can be said is, that the United States are, pro tanto, trustees for them; but as to the forfeiting party, the government is the only legal actor. There must be a right of releasing some where. A release by the officers of the customs would not prevent the United States from recovering the whole penalty. Thus, in debt on a single bond made to A., to the use of him and B., the defendant pleaded a release made to him by B.; on which the plaintiff demurred; and without difficulty, it was adjudged for the plaintiff: for B. is no party to the deed, and therefore can neither sue nor release it. But it is an equitable trust for him, and suable in the Chancery, if A. will not let him have part of the money: and the book of Edw. III. cited, that he might release in such case, was denied to be law. Since there must be a power of releasing somewhere, and the officers could not do it, the power must reside in the United States, and the remission is such a release.
Cases have been cited on the other side, in which Courts of law have taken notice of equitable interests, and have permitted them to be pleaded or replied, so as to protect them. All these cases proceed on the ground of fraud and collusion, which cannot be charged here. As to Bottomley v. Brook, and Rudge v. Birch, they are said by Mr. Maryatt, in Schooley v. Mears, to have been overruled in the Exchequer, in the case of Lane v. Chandler: and in Wake v. Tinkler, Lord Ellenborough says, 'I am much more inclined to restrain than to extend the doctrine of these cases.' And Bailey, J. says, 'we have nothing to do in this case with any other than legal rights.' So in Bakerman v. Radenius, Mr. Erskine (arguendo) states a case before Lord Mansfield, where an action was brought in the name of a nominal plaintiff by persons beneficially interested, for whom he was a trustee. At the trial, the defendant produced a release from the plaintiff, which Lord Mansfield held to be conclusive; but said the Court of Chancery, upon application, would make the trustee pay the principal, the debt, if well founded, and the costs of suit. And Lawrence, J. cites a case from Salkeld, where Lord Holt said, that if the plaintiff in ejectment, who is considered only as a trustee for the lessor, released the action, he might be committed for a contempt of the Court: 'but he did not say the release would not defeat the action.' So, in Paine v. Rogers, where the tenant, a nominal plaintiff, having given a release to the plaintiff, the Court, on application of the landlord, ordered it to be given up; clearly, because if used it would defeat the action. And in Legh v. Legh, the obligor of a bond, after notice of its being assigned, took a release from the obligee, and pleaded it to an action brought by the assignee, in the name of the obligee. The Court, on motion, set the plea aside, Eyre, C. J. saying, 'the only question is, whether the assignee must not seek relief in a Court of equity.' Clearly showing, as the whole case does, that the plea could not be replied to at law.
But why should the custom-house officers be entitled to maintain this action in the name of the United States, notwithstanding their release, and having no possible interest in the result? Why should they have the benefit of not being liable to costs for a false action? They are not assignees of the United States, if that would protect them. There can be no assignment of a test. The injury by the Marshal's return is directly to themselves, and the United States have barred themselves from regarding it as an injury to them by the remission. The right to sue in the name of another only existed where the action would not lie in the name of the party actually interested. But, in every case where the unlawful act of one person does an injury to another, an action on the case lies for the injury. Can the United States, who are not injured, sustain this action? If they could, is such a right of action assignable? Here, however, is no actual assignment; and it can only be considered as analogous to the assignment of a chose in action. But how can the real plaintiffs entitle themselves to the damages recovered in the name of the United States, without such assignment? The law only gives them half the forfeiture or proceeds. How, then, can they, notwithstanding the release or remission by the United States, recover, in their name, damages which they are not legally entitled to participate in? and do so for their own benefit, when, if they have sustained damages, they may sue in their own name?
And this brings us to consider some of the special causes of demurrer. The replication is a departure from the declaration, not only by not bringing forward matter pursuant to it, and fortifying it, but by bringing forward matter showing no right of action in the plaintiffs, and showing, that if it exists any where, it exists in third persons; and that this matter was known, and might be made available, before action brought. Departure is defined to be, 'when the second plea containeth matter not pursuant to his former, and which fortifieth not the same, and, therefore, it is called decessus, because he departeth from his former plea.' Thus, where the defendant pleads in bar a lease for fifty years made by a corporation; plaintiff replies, that it was made while a former lease was in existence, and shows the statute 21 Hen. VIII., and that the lease for fifty years was void; not setting forth the proviso making such leases good for twenty-one years. Defendant, in his rejoinder, pleads the proviso of the statute 21 Hen. VIII., which makes such leases good for twenty-one years. Held, that this pleading of the proviso was a departure, because it neither goes with, nor enforces the bar before. So, in a praecipe quod reddat, the tenant pleads, that the land was devised to him, and the plaintiff replies, that the devisor was an infant; to this the defendant says, that, by the custom, infants may devise; and, per Curiam, this is a departure, for he ought to have pleaded the special matter first. So, in Doctr. Plac. 124. per Keble, nota, where general matter is pleaded, and where the special matter might have been pleaded at the commencement, the party, afterwards, shall not maintain the general matter with the special matters. And if the defendant justifies by distress for rent, and the plaintiff replies, that he used and sold them, to which the defendant rejoins, that he sold the distress pursuant to the statute 2 W. & M., it will be a departure; for it should have been alleged so at first. Defendant, in a plea, justified taking cattle damage feasant, and afterwards rejoined, that they were taken surcharging the common; held to be a departure; and one of the reasons was, that the surcharge might have been pleaded first, because the defendant then knew the plaintiff's right. So, when a man, in his former plea, pleadeth an estate made by the common law, in the second plea, regularly, he shall not make it good by an act of parliament. So, when, in his former plea, he entitleth himself, generally, by the common law, in his second plea he shall not enable himself by a custom, but should have pleaded it at first.
As to the third cause of demurrer, the statute only enables the issuing of a writ of execution to another District, upon judgments 'obtained for the use of the United States.' The present judgment was obtained in their name; but for the use of other parties. It is contended, that if the judgment was for the use of the United States, the execution need not be so. But the privilege obviously attaches to the execution, and not to the judgment. It was for the benefit of the government, and was not intended to be communicable to citizens in cases where the United States have no interest. All the rules for construing statutes will bear out this interpretation.
Mr. Webster, for the plaintiffs, in reply, insisted, that the authority to sue in the name of the United States could not be disputed by the defendant in this Court. The government was here represented by the Attorney General, and if he did not interfere with the suit, it might well be maintained. It was novel doctrine, that an appearance by a wrong attorney was a ground of demurrer. If it had been intended to take advantage of that objection, a summary application should have been made to the Court below, by whom the attorney on the record had been appointed to prosecute this suit, the District Attorney having refused to prosecute it. The discretionary power exercised by the Court below in this instance, was essential to the administration of justice, whenever the District Attorney refuses to act, or is interested, or in case of his death. But, even if this Court should be of opinion, that the order made in the present case was irregular, it would not, on that account, give judgment against the sufficiency of the plaintiff's replication as pleaded. It would merely direct the pleadings to be amended by inserting the name of the District Attorney in the place of the present attorney on the record. The plaintiff's declaration is admitted to be good, and it is unnecessary to consider the replication, since the plea contains the first fault (if any) in the pleadings. It cannot be pretended that it is a good plea, because the plaintiff has declared by a wrong attorney. If this judgment be affirmed, it is a perpetual bar as against the United States, and all others interested. While the cause is allowed to stand on the calendar, the rights of the parties, as stated in the pleadings, must alone be regarded. But the officers of the customs have a right to use the name of the United States. The cases cited in the opening sufficiently show it. Wherever the subject has an interest in a prosecution in which the king's name is necessary as a formal party, the subject has a legal right to use it. All cases of information, not ex officio, are of this sort, such as those by the Master of the Crown Office, in quo warranto, of intrusion to office, &c. The prerogative of the supreme magistrate is held, not for purposes of ostentation, but for the substantial benefit of society, and its aid may be invoked as often as necessity requires it.
The plea is bad, because the Marshal, who is a mere ministerial officer, was not a competent judge of the validity or effect of the remission. He is the officer of the Court, and not of the treasury. He is to collect the money, and bring it into Court. When it is received in the registry, distribution is to be made of it according to law; or if the forfeiture has been remitted, the conditions of the remission are to be complied with under the directions of the Court. If the Marshal had levied the money upon the execution, and no remission had been obtained, he could only be compelled to pay it over by a motion to compel him to return the process. If the remission had been unconditional, and could devest the share of the custom-house officers, he had nothing to do with carrying it into effect. It is by the Court only that the rights of the parties are to be ascertained, and their respective claims to be satisfied.
The plea is also bad, because it does not set forth, with proper averments, the facts and circumstances stated in the petition to the Secretary of the Treasury, upon which the remission of the forfeiture was granted. It is an inflexible rule of pleading, that whenever a justification is set up under a special or limited authority, every thing should be set forth to show the case to be within the protection of the authority relied on. The statement of facts on which the remission was grounded, is essential to be known, in order to see whether the Secretary of the Treasury, who also acts merely as a ministerial officer, has pursued his authority. It has, indeed, been argued, that the Secretary acts judicially in those cases, and that his decision is an adjudication binding on all the world, and especially on the officers of the customs, who are both parties and privies. But, how can that be a judicial power, which is merely of executive discretion? The Secretary may remit under the statute, whenever it is proved to his satisfaction that the offence was committed 'without wilful negligence, or an intention of fraud;' but he is not bound to remit even in case of innocence ever so clearly proved. All judicial power, under the constitution, is vested in one Supreme Court, and such inferior tribunals as Congress shall establish. How, then, can any portion of that power be vested in the treasury department, or in any other executive department?
The plea is bad, because it alleges the remission after a final sentence of condemnation, and a summary judgment upon the appraisement bond. The Remission Act of Congress was evidently copied from the British statute of the 27th Geo. III. c. 27.; and under that statute the Commissioners of the Customs have never exercised the power of remitting a forfeiture after judgment. This defect of authority having been found, in some respects, inconvenient, the power of remitting after judgment was expressly given (not to the Commissioners of the Customs, but to a higher authority,) the Lords of the Treasury, by the 54th of Geo. III. c. 171. When it is said, that the rights of the custom-house officers are vested from the time of the judgment or sentence, it is not meant that they are vested independent of the act of Congress, but under the act, and according to the act. If the law authorizes a remission after judgment, it is idle to speak of rights being vested by the judgment. The question is, what does the act mean? And it is contended, that it limits the power to cases before condemnation. Every clause and phrase of the act is applicable, and alone applicable, to such cases. The persons entitled to the benefit of the act, are those who 'shall have incurred any fine, forfeiture, or disability, or shall have been interested in any vessel, goods, wares, or merchandise, which shall have been subject to any seizure, forfeiture, or disability,' &c. This cannot refer to things already forfeited. Goods forfeited and condemned, are not subject to forfeiture; that are actually forfeited. So, the words, 'incurred any forfeiture.' No man incurs a forfeiture by a judgment against him. It is the offence by which the forfeiture is incurred. So, also, the summary inquiry which is to be made by the District Judge, into the facts and circumstances of the case, shows, that the law supposes that no trial had yet been had. It would be an absurd provision, upon any other supposition. The act authorizes the Secretary to direct the prosecution, if any shall have been instituted, for the recovery of the forfeiture, to cease, and be discontinued. It supposes a prosecution either pending, or not yet brought. The prosecution cannot be said to be pending, in a general sense, after judgment. There is not a single expression in the act applicable to a judgment. But here are two successive judgments, one against the goods, and the other against the claimants, upon the appraisement bond. How can the remission discharge this second judgment? Why was not the remission shown when the application was made for that judgment, so as to prevent its being entered? There is nothing in the act to authorize the remission of a judgment. The subjects to be remitted are, 'fines, penalties, forfeitures, and disabilities.' Besides, the phraseology applicable to judgments would be, released, or vacated; not remitted or mitigated. There must be some limit in point of time, and in the order of the proceedings, to the exercise of this power of remission. If the rights of all parties are not fixed and ascertained by the judgment, it will be difficult to discover when they are consummated. The receipt of the money by the officers may change the possession, but it cannot alter the right. That idea is expressly rejected by the Court in Jones v. Shore.
The argument on the other side, that there must be a power of releasing somewhere, and since the Custom House officers cannot do it, the power must reside in the United States, and may, therefore, be exercised by the Secretary of the Treasury, is founded upon an entire misapprehension of the distinct powers of the different branches of the government. There is no authority given by law to any department or officer of the executive government to release a debt due by judgment. The Secretary of the Treasury may remit a forfeiture or penalty before judgment, or may discharge the debtor as to his person, but nothing short of the legislative power of Congress, specially exercised, can discharge the debt. The usual course of the Treasury has been, to refuse to remit after judgment, and to refer to the President for the exercise of the pardoning power. It may well be doubted, whether that power extends, under the constitution, to cases arising under the revenue laws. But the practice shows the sense entertained by the Treasury of the limitation to its authority. Whether the President's pardoning power extends to such cases or not, there is a close analogy between a pardon and a remission; and there is no more reason why one should affect private rights and interests actually vested more than the other. Both suppose legal guilt, and some consideration which makes it consistent with the public good that it should be forgiven. A pardon, as well as a remission, often supposes moral innocence.
As to the execution running out of the District of Maine, not only was the judgment 'for the use of the United States,' but the execution was for their use. If the forfeiture could not be remitted after judgment, the whole debt is still due, and the United States have a direct interest in a moiety of it. If the forfeiture might be remitted, so far as the share of the United States is concerned, they have still an interest in enforcing the demand, since it is intended to secure to their officers a part of their legal compensation. But this question cannot arise upon the pleadings. The defendant admits that he has executed the process, so far as the remission did not prohibit it, and he is therefore estopped by his plea from insisting that it is a void process. March 15th.
Mr. Justice THOMPSON delivered the opinion of the Court, and after stating the case, proceeded as follows:

## Notes

* ↑ Which provides, (s. 1.) 'That wherever any person, or persons, who shall have incurred any fine, penalty, forfeiture, or disability, or shall have been interested in any vessel, goods, wares, or merchandise, which shall have been subject to any seizure, forfeiture, or disability, by force of any present or future law of the United States, for the laying, levying, or collecting, any duties or taxes, or by force of any present or future act, concerning the registering and recording of ships or vessels, or any act concerning the enrolling and licensing ships or vessels employed in the coasting trade or fisheries, and for regulating the same, shall prefer his petition to the Judge of the District in which such fine, penalty, forfeiture, or disability shall have accrued, truly and particularly setting forth the circumstances of his case; first causing reasonable notice to be given to the person or persons claiming such fine, penalty, or forfeiture, and to the Attorney of the United States for such District, that each may have an opportunity of showing cause against the remission or mitigation thereof; and shall cause the facts which shall appear upon such inquiry, to be stated and annexed to the petition, and direct their transmission to the Secretary of the Treasury of the United States, who shall thereupon have power to mitigate or remit such fine, forfeiture, or penalty, or remove such disability, or any part thereof, if in his opinion the same shall have been incurred without wilful negligence, or any intention of fraud in the person or persons incurring the same; and to direct the prosecution, if any shall have been instituted for the recovery thereof, to cease and be discontinued, upon such terms or conditions as he may deem reasonable and just.' (S. 3.) 'That nothing herein contained shall be construed to affect the right or claim of any person to that part of any fine, penalty, or forfeiture, incurred by the breach of any of the laws aforesaid, which such person shall or may be entitled to, by virtue of the said laws, in cases where a prosecution has been commenced, or information has been given before the passing of this act, or any other act relative to the mitigation or remission of such fines, penalties, or forfeitures; the amount of which right and claim shall be assessed and valued by the proper Judge or Court in a summary way.'
* ↑ Which provides, (s. 89.) 'That all penalties accruing by any breach of this act, shall be sued for and recovered, with costs of suit, in the name of the United States of America, in any Court competent to try the same; and the trial of any fact which may be put in issue, shall be within the judicial District in which any such penalty shall have accrued; and the Collector within whose District the seizure shall have been made, or forfeiture incurred, is hereby enjoined to cause suits for the same to be commenced without delay, and prosecuted to effect; and is, moreover, authorized to receive from the Court, within which such trial is had, or from the proper officer thereof, the sum or sums so recovered, after deducting proper charges, to be allowed by the said Court; and on receipt thereof the said Collector shall pay and distribute the same, without delay, according to law,' &c. (s. 91.) 'That all fines, penalties and forfeitures, recovered by virtue of this act, and not otherwise appropriated, shall, after deducting all proper costs and charges, be disposed of as follows: 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 in the said District; and in districts where only one of the aforesaid officers shall have been established, the said moiety shall be given to such officer,' &c.
* ↑ The Margaretta, 1 Gallis. Rep. 515. 522. The Hollen, 1 Mason's Rep. 431.
* ↑ Jones v. Shore, 1 Wheat. Rep. 462. Van Ness v. Buel, 4 Wheat. Rep. 74.
* ↑ 8 Cranch's Rep. 398. 417.
* ↑ Jones v. Shore, 1 Wheat. Rep. 470.
* ↑ 3 Inst. 233.
* ↑ 5 Co. 51. a.
* ↑ 3 Mod. Rep. 56.
* ↑ Cro. Car. 357. 358.
* ↑ 1 Salk. Rep. 233, 234.
* ↑ 3 Inst. 238.
* ↑ Str. Rep. 1272.
* ↑ 5 Co. 51. b. Cro. Jac. 159. Cro. Car. 199.
* ↑ 5 Co. Lit. 51. b.
* ↑ Cro. Car. 47.
* ↑ Parker, 280.
* ↑ 5 Rob. 173.
* ↑ Hoyt v. Gelston, 3 Wheat. Rep. 319.
* ↑ ↑ Cro. Jac. 82.
* ↑ Cro. Jac. 179, 180. Com. Dig. tit. Assignment, (D.)
* ↑ 1 Chitty's Plead. 369.
* ↑ Post Master General v. Cochran, 2 Johns. Rep. 413.
* ↑ See 2 Chitty's Plead. 203-206.
* ↑ Co. Litt. 304. a.
* ↑ 1 Term Rep. 619.
* ↑ 1 Wheat. Rep. 462.
* ↑ 2 Gallis. Rep. 516.
* ↑ 1 Wheat. Rep. 462.
* ↑ Comyn's Dig. Pardon, (A.)
* ↑ 1 Wheat. Rep. 467.
* ↑ 4 Wheat. Rep. 74.
* ↑ 1 Wheat. Rep. 467.
* ↑ 2 Gallis. Rep. 522.
* ↑ 5 Rob. Rep. 155. Am. ed.
* ↑ Weddel v. Thurlow, Parker, 280.
* ↑ Offly v. Warde, 1 Lev. 235. S.C.. 2 Keb. 333.
* ↑ Bayley v. Lloyd, 7 Mod. Rep. 250.
* ↑ Cited in 1 Term Rep. 621, 622.
* ↑ 7 East. Rep. 153.
* ↑ 7 Term Rep. 662.
* ↑ Anony, Salk: 260.
* ↑ Dougl. 407.
* ↑ Co. Litt. 304. a. Doctr. Plac. tit. Departure, (119.)
* ↑ Fulmarston v. Stuard, Dyer, 102. b. 103. a.
* ↑ Doctr. Plac. 123. 37 H. VI. 5.
* ↑ Com. Dig. Pleader, (s. 8.)
* ↑ Ellis v. Rowles, Wilkes, 638.
* ↑ Co. Litt. 304. a.
* ↑ Bar. Abr. tit. Statute, (J.) 5. Plowd. 18.
* ↑ Chitty's Crim. Law, 798.
* ↑ 1 Wheat. Rep. 470.
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