Year: 1859

In Lte matter of the Petition of DANIEL FOSTER and


WILLIAM HENRY JOHNSON for a Aandansas TO The


Collector General of Customs.


ALLEN, G. This is o PETITION Of Messrs. Foster
johnson for mandamus to the Collector General of
Customs ordering him on receiving the duties on the
hull of vessel called the Morea to grant permit 20
them for the same.


They allege that they purchased said hull at public
auction, in bond, and calling at the Custom House
and Offering to pay and rendering the duties, the Col
octor General refused to receive the and grant
the necessary permit but the contrary has caused
the said vessel to be seized for volaton of the rev.
enue laws


The District Attorney as Counsel for the Collector


General, has fled an answer to the foregoing petition
in which he says that the 9th day Of October last
past the ship Morea reported at the Custom House
as unseaWOrtby, and that survey was necessary,
Whereupon permit was granted in words following,
viz


COLLECTOR GENERALS OFFICE,
Honolulu, October 27, 1859.


Permit Capt. Manchester, Of the ship Morea to land
from his vessel all her cargo, stores &c. &c. IN order
to clear the ship for survey All spirits TO be sent
into the Custom House, and all articles landed to be
returned on board if the ship repaired or properly
permitted, should she be condemned.


(Signed) BARTLETT,
Deputy Collector.


That, in pursuance Of said permit, the ship Morea
stripped and all but her hull landed on the wharf
and that on the l4h Of Nov the hull of the ship with





were sold at auction by John F. Coburn an auctioneer
and delivered to the purchasers who have taken pos
session Of the same without being entered and the du-
ties paid in accordance with the laws Of the kingdom
whereupOn, the 18th of December instant the hull
of the said ship MOrea seized liable to forfeiture
| the purchasers having commenced breaking up the
same, to be sold for consumption within the Kingdom


The facts cs detailed in the petition admitted to
be true.


The proper permit was granted for landing the goods
from the ship for survey, but not for consumption
and if the closed here it would clearly be case
OF smuggling. For although person has a right to
permit for landing goods from vessel in distress he
has right to put them into market without an entry
and payment Of the duties.


But in cases Of this kind for the convenience of the
parties and for the ascertanment Of the value of the
property sOd it has been the custom to delay the en-
try till alter the sale, and to make out the entry from
the account of saes-and infer that the same course
taken in this from the fact that the sale of tie
property made by licensed auctioneer and it is
admitted that it has been the custom of the Collector to
allow auctioneers, in of this character to SELL
and account to him afterwards for the duty. 1t is ad
mited that the Collector General witnessed the sale
from the Custom House, and that Of his officers
purchaser of some articles at the sale. The Col
ector General further says that about fortnight after
the sale ne went to ask Mr.. COlburn why he had not
made entry and paid the duties and he said he had
not sold all the things, that there sextsnt and
quadrant and other things and that when he had
done so he uld pay them.


For the convenience Of the Custom House as well as
for the of the property, sale Of the property
permitted. The landing of the goods was there
fore virtually approved from the beginning, and if
so there at this time any act of smuggling There
had not been any fraudulent coneeament Of the prop
erty or any act done in contraventOn of the ayowed
practice and usage Of the Offices but the contrary
full compliance with all its acquisitions. The property
then sold in conformity TO law and usage but the
duties not subsequently paid they should have
been, and now this omission to fulfill the express
1f -
whole transaction fraudulent ab nrto and subject
the parties interested in said property forfeiture
for smuggling?


1t will not be contended that this can be the case
for the property being once leg lily in the kingdom for
eure cannot attach it. 1t is very clear that at the
time Of the sale, the Collector did not entertain the
idea that smuggling being done all was open and
above board and the whole transaction, I infer, met
his appreciation, till some days afterwards, when the
duties were called for and payment not made.


The payment of the duties had become a matter of
contract But is eonended that it will occasion great
inconvenience if the Collector is forced the rigid rule
Of compelling entries at once in Of this character
this may be- but unes1 he has security for the payment
of the duties before the property is out of his possession
he the hazard Of loss Look at the consequences
to the purchaser at public sale when the Collector
acquiesces in its validity and virtually agrees that the
entry may be made and the duties paid afterwards,
by custom and usage appertains, but subsequently
ascertanng the bankruptcy of the person whom he
relies, re- asserts claim in the property even to for
feiture hold that the property egitimatey went
into the market that whatever Of dishonor Of neg
genee the parties may have been guilty of in the
payment Of duties according to the understanding does
not tant the transaction ITSELF TO affect the title
Of the property in the hands of innocent purchasers


This is somewhat different from that Of a regu-
lar Importation when all the prerequisites to landing
may be performed for, in the first instance the land
ing in like this must take place without them for
here the goods landed for survey and not for
sale and permit given for that purpose So, goods
wrecked on our shores may be taken away, may
ter into the consumption Of the country and If they
do duties to be paid it is not at all strange that


delay for an enumeration and valuation by public sale
should be made with the appreciation of the Collector
1t only requires his part security for the duties
whatever they may be.


1t is q sound legal principle. that q forfeiture can
only be applied to those in which the that
are prescribed for the prevention Of forfeiture NAV be
Employed Priest u.s. Ware, Curtis, Decisions Of
the Supreme Court, U. s.


Can any one doubt that the entry would have been
made and duties paid had it not been by the approba
ton Of the Collector that this postponeent made
to complete perfect enumeration and to fix the yalua-
ton The admitted usage in like cases, the ecquies-
cenee Of the Collector in this particular case, evnced
by his witnessing the sale, which took place the I4th
Of November ; his call the auctiOneer for duties
some two weeks afterwards his delay Of the seizure Of
the vessel till December 18th and his virtual APPROX
al of the sale by suffering the purchasers to remove
all the property which they bad purchased consisting Of
boats, &C., &C., proves this not to be exceptional
case.


is admitted that the business done in the most
public and there is pretence Of any conceal
ment in the case.


do not intend to be understood that custom has
arisen obligatory the Collector to bind him in
of this character without an approval Of the same
course, in this particular but where this Is
given, the non-fufment Of the terms by the auction
eer does not work forfeiture Of the property in the
hands of an innocent purchaser. 1t may be regarded
as an incomplete entry, to be perfected when the sle
has fixed the valuation. and to do this, iona de sale
must be made and if bona e the right of the petition
ers to complete the entry and perfect the te is clear


The petitioners present still stronger e, for the
hull purchased by them was sold in bond, and they
have rendered the duties and are now ready to pay
them. 1t would certainly be serious caSe for pur-
whioh