
    Brewster against Gelston.
    ALBANY,
    August, 1814.
    Under the 9’si: section of the act of congress (passed March 2d, 1799,) for the collection of duties, to entitle an officer of a revenue cutter to a share of the forfeiture, the information given by him must be of such a nature as to conduce essentially, altho’ not independently of other evidence, to a condemnation.
    The mere naked seizure of a vessel by the officers of a revenue cutter does not give any right to a share of the forfeiture.
    The settlement of the collector’s accounts, respecting the proceedsanddistribution of forfeitures, and the expenses attending condemnation, at the treasury of the United States, is to be received as prima fade evidence of the fairness and correctness of, such settlement.
    THIS was an action of assumpsit, brought to recover the plaintiff’s share, as informer and seizer of the ship Magistrate, and of the ship Liberty, and their cargoes, and of the schooner Hiram and her cargo. The declaration contained the common money counts, and the plaintiff’s bill of particulars stated the different sums demanded. The defendant is the collector of customs of the port of New-York, and the plaintiff commanded the revenue cutter Active, employed by the custom-house.
    The cause was tried at the New-York sittings, in July, 1812, before his honour, the late Chief Justice.
    As to the schooner Hiram: Lemuel Ferris, master of the Eglantine, on the part of the plaintiff, testified, that coming through the Sound, he observed the schooner Hiram, and passed her near Byram Point; that in the morning of the day after his arrival in Nem-York, (about the 1st of December, 1808,) the plaintiff came on board, and he informed the plaintiff that he had seen a schooner in the Sound, and suspected her to be a smuggler; that in the evening of that day he was sent for by the plaintiff, to look at a schooner lying at the Old Slip, supposed to be the same which he- had seen in the Sound, and which he thought was the same; but that he heard Andrew Mead say, (as was confirmed by Lockwood, the next witness,) that it was not the vessel they were searching for, and that he heard Peter A. Schenck, the surveyor of the port of Nem-York, say, that they had seized the wrong vessel; that the vessel they were looking for was the Phoebe ; that about noon of the day after his arrival, he saw Luke Mead arrive, and that he saw the suspected vessel arrive in New-York, about the noon of the same day. Whether the day after Ms arrival was Friday or Saturday, the witness did not know.
    
      Epenetus Lockwood, who was on board of the Eglantine with Ferris, when he observed the Hiram, confirmed Ferris’s statement, as to the conversation between him and the plaintiff.
    
      William Isaacs, also on the part of the plaintiff, testified, that the revenue cutter Active, of which the plaintiff was master, laying off the Old Slip, the plaintiff took Andrew Mead oh hoard of Ms boat; that the plaintiff told Mead that he was going to look for a schooner that had come through the Sound; that they found the schooner Hiram that evening, which was Saturday, and that, consequently, they did not examine the vessel before Monday; that when they seized the vessel, Andrew Mead said, that it was not the vessel he was looking for; that on searching the vessel, the plaintiff' discovered (as was also testified by Andrew Mead) a quantity of dry goods in a cask, lashed on the quarter deck of the vessel as a water cask, and he also discovered some goods concealed in the after-run of the vessel.
    
      Luke Mead, on the part of the defendant, testified, that he saw the Hiram come to at Byram Point, in the evening, and land goods in a boat; that he arrived in New-York the next day, on or about the 1st of December, 1808, he thinks it was on Friday, about noon; that shortly after his arrival, he met with a Mr. Scudder, a custom-house officer, who took him to the customhouse, and introduced him to the defendant and Peter A. Schencks (which Scudder, on being examined, confirmed,) where he related what he had seen, and was directed to go and look for the vessel, and was told that he would be considered as an informer; that he went to the dock, and there met with Andrew Mead; that they both went to the custom-house, and were again directed to search for the vessel; that Andrew Mead went in search of her, and witness went about some other business; that he did not mention the name of the vessel at the customhouse, but believed he said that it was the Phczbe, which he supposed to be her name. That some time after the seizure, the plaintiff) in a conversation with the witness, observed, that the witness would receive something handsome, as informer, and that when he received Ms money, he ought to make a present, to penis and Lochreodíov their assistance; that the plaintiff did not pretend that he had any claim as informer, which conversation was confirmed by the next w itness.
    
      Andrew Mead, on the part of the defendant, ics-ified that when lie went with Jüstke Mead to ibe enatoro-heuee, he was directed io go and search for the schooner rnd the plaintiff) and to direct .him to seize her. That he saw the plaintiff near night, on Friday, and ioM hint the order of Mr. Schendc; that the plainfiff1’ agked the witness her name, wMch he suggested to he the 
      Phoebe; that he went in a boat with the plaintiff 'Lockwood, an«S others, and rowed along the docks, looking for the schooner; that they found her in the' evening, and seized her; that the plaintiff was, at first, doubtful, but the next morning said to the witness that they had got the right vessel; that the plaintiff did not pretend to any knowledge of the vessel having been smuggling, previous to the witness’s communication.
    
      Peter A. Schenck, on the part of the defendant, confirmed Luke Mead's statement, as to what passed at the custom-house, between him and Luke and JÍndrew Mead, which was on Friday, the 2d of December, 1808. He testified that he did not remember that he had ever said that they had seized the wrong vessel, or that the vessel they ought to have seized was the Phosbe ; that he could not have said so, as her name was not mentioned to him. That the vessel was seized on Friday night, and was examined on Saturday. That on Sunday, he received information from the defendant, that there were some pieces of linen concealed in the ceiling of the cabin ; that he went on board on Sunday, made the search, and found the linen in the place described by the defendant.
    
      Jeremiah Mead declared, that he had heard the plaintiff say, that the first information he had of the Hiram, was from the orders of Mr. Schenck, through Andrew Mead, but that he said the orders were not in writing, and he was not bound to obey them.
    As to the ship Magistrate : it was proved, on the part of the plaintiff that Squires, the first lieutenant of the cutter Actives went with the cutter’s boat after the Magistrate, which they overtook in the bay, and stopped her; that they went into the cabin with the captain, and the captain, with Ms papers, came on shore, and went with Squires to the custom-house. That the Magistrate was taken charge of, for some days, by the meti of the Active, and her sails were unbent; and, as one witness testified, put into the public store by the men of the Active, which, however, was denied by Peter A. Schenck, who stated that they were not put into the public store, but were, as he believeds stolen, or taken away by some of the Magistrate's crew.
    
      Peter A. Schenck, for the defendant, testified that he and the ■ defendant observed the Magistrate going from Dowles°Eook 
      down the bay; that shortly after they saw her. Squires came to Che custom-house, and the defendant ordered Mm to go and examine her papers, and if he found any thing wrong to stop her; that a few minutes after Squires left the custom-house, he directed Sickles to go and tell him to stop her at all events, which message Sickles testified that he delivered; that shortly after, Squires and the captain of the Magistrate came to the customhouse; and on inquiry of the captain, it was discovered that he had not given to the collector of Amboy the bond required by the act which had just then been passed, called the enforcing act; that there was some conversation and negotiation about giving the bond to the defendant; that in the course of the negotiation the captain of the Magistrate, who was also the owner, admitted that he was a foreigner by birth, but said that he had been naturalized; and on being requested to produce Ms certificate of naturalization, which he professed to have in his power, he either could not, or did not produce it. The witness said that Squires and Gilpin, the other lieutenant of the Active, never pretended to have any right, and frequently dis» owned to have any claim to the Magistrate or to the Liberty.
    
    As to the Liberty; it was proved by several witnesses, that the defendant, having suspicion that the captain and crew of the Liberty intended to run away with her, had her watched by the officers of the customs, and that the crew of the Active assisted in watching her and in unbending her sails, which were taken on shore. One witness stated, that on Sunday evening, In a violent snow storm, Schenck toid the custom-house officers, that they need not watch her that night, as no vessel would attempt to stir in such a storm; but it was proved, that on that night, the captain and crew of the Liberty cut her fasts, and went oS with her. It was proved by Peter A. Schcndc, and another witness on the part of the defendant, and not denied, but rather confirmed on the part of the plaintiff, that Schenck, having been informed that the Liberty had gone, went to the Active and gave Gilpin the information, and requested him to go after he’-3 that he seemed very unwilling to go, and made many objections, but that Schenck told him he must go, and that If he wanted any additional hands they should be procured, and. he procured íívg or six additional hands and put them on board 3 that Gilpin still objected to going, until he could see Squires and the defendant, or one of them, and that he went on shore for the professed purpose of consulting one or both of them. Schenck also sta(-e(]; that shortly after, he went to the house of the defendant, and that as he was going in, he met Gilpin coming out, and that having stayed there a few minutes, the witness returned to the cutter and found them in the act of going off. It was further proved, that the cutter Active went after the Liberty that night, and came to anchor under one of the islands in the bay; that they did not see the Liberty that night, but as they were returning to Ncw-York, she was seen ashore at Governor’s Island, but they did not then go to her.
    
      Jonathan L. Brewster, a witness for the plaintiff, and who was on board of the Active, testified, that as they approached the dock, on their return, they saw Squires on the dock; that he hailed the cutter, and asked whether the ship on Governor’s Island was the Liberty ; and they answered that it was; that he then ordered them to get the boat out to go on board of her; but while they were getting the boat ready, William Van Beuren, the master of the cutter Protector, invited Squires to go with him in his boat, as she was ready; but this statement was denied by a witness for the defendant, who was also on board the Active ; that Squires went with Van Beuren ; that Squires procured lighters; and it was stated by several witnesses for the plaintiff, that Squires took charge of the Liberty, and that she was unloaded by the Active’s crew, who were set to work by Squires.
    
    Two of the crew of the Active testified, that they went, by order of Squires, in the Protector’s boat, with him, Van Beuren, and two of the Protector’s crew, and assisted in rowing her. One of these witnesses testified, that he was on board of the Protector when the Active returned in the morning; that Squires was on board of the Protector first, and before he saw Van Beuren, directed the witness to go into the boat, to go on board of the Liberty.
    
    
      William Van Beuren, for the defendant, testified, that early in the morning after the Liberty escaped, he observed a ship which he supposed to be the Liberty, on shore on Governor’s Island ; that he immediately ordered his boat to be manned ; that, just before he sailed, he saw Squires, and invited him to go along ; that they went on board, took possession of her, and left one of his men in charge of her ; the witness could not tell whether the Active had come up before his boat went off, but denied hi* hailing her, and did.not think that any one hailed her- The witness stated, that he had determined to go off before he saw Squires ; but that he went for him and saw him on some dock.
    
      Nathaniel Shultz, a witness on the part of the defendant, tesiified, that he was the clerk of the defendant, as collector, and kept hig books. The witness produced an account, as an extract from those books, by which it appeared, that the sum of two thousand seven hundred and fifty-five dollars and thirty-five cents-, had been paid by the defendant, as the expenses incurred in and about the Liberty and her cargo. He testified, that the account had been allowed and settled at the treasury of the United States; he produced duplicates of all the items of the account, except for about eight hundred dollars, of which he stated that no duplicate had been received, and the original vouchers were filed at Washington. The witness testified that the defendant paid into the treasury, or to the Manhattan Bank, to the credit of the treasurer of the United States, all the money in his hands, belonging to the United States, every three months ; that one moiety of the sums received from the marshal, as the proceeds of the Liberty and Magistrate, and their cargoes, had, after deducting the said sum of two thousand seven hundred and fifty-five dollars and thirty-five cents, from the sum received, as the proceeds of the Liberty and cargo, and after deducting a small sum for the expenses chargeable on the proceeds of the Magistrate and cargo, been paid to the credit of the United States, and two thirds of the remainder had been paid to the naval officer and surveyor of the district of New-York.
    
    The Chief Justice, in his charge to the jury, remarked, that the plaintiff’s claim, if at all, must be supported under the 91st section of the duty act, and that the law ought to be construed benignly in his favour. He decided, and charged the jury, that the plaintiff was not bound by the allowance and settlement of the defendant’s accounts by the officer of the treasury; and that he had a right to object to the deductions claimed by the defendant, on account of the expenses, notwithstanding such allowance and settlement; and the. jury found a verdict for the plaintiff accordingly.
    A motion was made to set aside the verdict, and for a new trial: 1. Because the verdict was against evidence ; 2, Because ®f the misdirection of the judge.
    
      
      Baldwin and Wells, for the defendant.
    
      T. A. Emmet, contra.
   Yah Ness, J.

delivered the opinion of the court, By the 91st section of the act of congress for the collection of duties, (passed the 2d of March, If99,) it is enacted 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 cohector, 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 est oh fished, the said moiety shall be given to such officer; provided. nevertheless, that in all cases where such penalties, fines, ana fot feitrwes, shall be recovered in pursuance of information given to such collectors, by any person other than the naval officer or surveyor of the district, the one half of such moiety shall be gi-en to such informer, and the remainder thereof shall foe -.tisposed of between the collector, naval officer, and survey- or or surveyors, in manner aforesaid: Provided also, that where any fines, forfeitures, and penalties, incurred by virtue of this act, are recovered in consequence of any information given by any oB/cer of a revenue cutter, they shall, after deducting all proper costs and charges, be disposed of as follows: One fourth part shall be for the use of the United States, and paid into the treasury thereof, in manner as before directed; one fourth part for the officers of the customs, to be distributed as herein before set forth, and the remainder thereof to the officers of the cutter, to be divided among them agreeably to their pay.”

The present claim, I presume, is founded upon the last pro»' viso. Whether the same information is not contemplated by both these provisos is uncertain ; neither is it very -material to the decision of this cause, in the view I have taken of it.

The information to be given by an officer of a revenue cutter must be of such a nature as to conduce to a final condemnalion. It must be such as, in the first instance, to lead to, and, perhaps, justify a seizure, and the commencement of a suit; and if such suit eventuates in a condemnation, the officers are entitled to their share. I do not apprehend that it is required that this information must consist of such facts or circumstances as, independently of all other evidence, would be sufficient- to produce a condemnation, though it ought to be such as essentially to contribute thereto.

With these general principles for our guide, let us see whether the verdict of the jury, in the three different caces of ítír» feitures, is against the weight of evidence or not; and I will consider them in the order they were presented by the counsel for the defendant. First, as to the Hiram;

The plaintiff, in the morning of the same day, early in December, received information which led Mm to suspect that this vessel was a smuggler, as appears by the uncontradicted testimony of Ferris and Lockwood; and this information was communicated to him before Luke Mead’s arrival at the city of New-York; upon this the plaintiff went in search of this vessel in his boat, accompanied, among others, by Andrew Mead, and, in the evening, having found the Hiram, he seized her, and, on search, goods were found concealed on board or" her, in such a manner as to leave no doubt that she was engaged in some unlawful trade or business. Upon what ground, or upon whose testimony she was condemned, does not appear in the case. Laying Luke Mead’s communication to the collector out of the ease, there can be no doubt that she was finally forfeited to the United States, in consequence of the information given by the plaintiff. In opposition to this, it appears that the first information given to the collector was by Luke Mead, who, together with Andrew Mead, went in search of her. They, however, supposed the offending vessel to be the Phxbe, Merrit master, and not the Hiram, Seely master. Luke Mead appears soon to have gone off on other business, leaving Andrew Mead to prosecute the search. Andrew Mead’s presence, when the vessel was seized, cannot, in any way, prejudice the rights of the plaintiff, nor admit him to participate in the forfeiture, particularly, as he declared, when the plaintiff discovered the Hiram, that she was not the vessel he was in search of. There Is some further testimony in support of Luke Mead’s claim, all of which wag submitted to the jury. The question is, whether the jury were not justified in concluding that the condemnation Was had in consequence of the information given by the plaintiff, rather than that given by Luke Mead. This was a question °f facb and though I am unable to say on which side the weight of evidence lies, the jury have found in favour of the plaintiff; and this is not a case where it would be proper for the court to interfere.

If the information communicated by Mead had been followed up by a seizure of the vessel, and a condemnation had ensued, he would have had a right to a share of the forfeiture. The only fact which he disclosed to the collector, after all, was, that he had seen this vessel land goods at Byram Point. This, of itself, would not have been enough, perhaps, even to authorize a seizure. It amounts to more, but not a great deal more, than the information given by Ferris to the plaintiff. Both Mead and the plaintiff proceeded upon suspicion; and the plaintiff having seized the vessel, and then possessed himself of information more unequivocally showing that the Hiram was a smuggler, by the detection of the concealed goods, I think, upon the whole, his right to participate in the proceeds of this forfeiture is entitled to a preference over that of Mead. Next, as to the Magistrate:

After a careful examination of the testimony, I cannot discover that the plaintiff has a colour of right to any portion of the proceeds of this vessel and her cargo. That he gave any information, in consequence of which this vessel was either seized or condemned, cannot be pretended. It has been said that it may be inferred from the circumstances that some such information was acquired while Squires was on board of her, but there is no foundation for any such inference. After Squires boarded the ship, he went down into the cabin, and soon after he and the captain, with the ship’s papers, went ashore and repaired to the custom-house, where, according to the testimony of Schenclc, the information was obtained which led to the final condemnation of the ship and cargo. The only thing which affords even a pretext for this claim is, that the officers and crew seized this vessel. But the mere naked seizure of a vessel by the officers of a revenue cutter, does not give any right to a share of the forfeiture.

The 97th, 98th, and 99fch sections of the duty act, show for what purposes revenue cutters are provided, and prescribes the duties which their officers are to perform. The objects for whish they are provided, (97th sec.) are stated to be, “ for the better securing the collection of the duties imposed on goods, &c. and to be employed for the protection of the revenue, &e. &e. The officers (99th sec.) are declared to be officers of the customs, and to be subject to the directions of the collectors, Sec. Their duties, in the same section, are, among others, declared to be, that they shall “ go on board all ships and ves» seis, &c. and search and examine the same, and every part thereof,” &c.

From the testimony of Sckenck and Sickles, it appears that the Active went in pursuit of the Magistrate, by order of the defendant, who had a right to send her on this service, and whose directions it was the duty of the officers to obey.' As one of the custom-house officers, and by direction of his superior, he found this vessel, and stopped her ; and for this he Is not, by the act of congress, entitled to any part of the forfeiture. The officers of the Active did nothing but what was in pursuance of their ordinary and appropriate duty, for which they receive a compensation from the government.

Lastly, as to the Liberty:

The circumstances which led to the seizure of this vessel, are shortly these. The defendant entertaining suspicions that her crew intended to run away with her, ordered her to be watched for some time. Their suspicions increasing, he ordered Squires to unbend her sails, and carry them ashore, which was accordingly done. On a Sunday night, during a violent snow storm, her fasts were cut, and she went off, and run upon Governor's Island in the course of the night, and bilged. Thus far the plaintiff had no concern in this transaction. Not long after the ship left the wharf some person informed Sckenck, the surveyor of the port, of it, who immediately, as it was proper he should do, took measures to stop and bnng her back. For this purpose, he went on board the Active, and applied to Gilpin, the only officer on board, "who refused to stir, until he had seen either Squires, the first lieutenant, or the defendant, and went ashore avowedly for the purpose of consulting with those gentlemen»

While he was gone, the surveyor went to the defendant’s house, where he met Gilpin, as he was coming out of it. Whether the officers of the revenue cutter were bound to obey Schcnck is immaterial; for there is every reason to believe, that the defendant himself directed the Active to pursue the ship in question. Gilpin set out, but saw nothing of the Liberty that night; but in the morning, on returning to the city, she was seen aground upon Governor's Island; and soon after, Squires, with two men from the Active, and two from Van Beuren's cutter, the Protector, and in company with Van Beuren, went on board of her, and seized her.

According to Van Beuren's testimony, he was prepared to go on board the Liberty before he saw Squires; and it is very questionable whether he ought not, in fact, to be considered the seizing officer, or at least as much so as Squires. On what grefund this vessel was condemned does not appear.

The mere seizure of the ship, much less assisting in bringing her cargo ashore, confers no right to a portion of the forfeiture. These, as has already been remarked, are the usual and proper duties of the officers of the revenue cutters. In all the testimony, too, we look in vain for any information given by the officers of the Active, in “ consequence of which this forfeiture was recovered.” Not a single fact was known or discovered by them leading to such a result, directly or indirectly. Indeed, it appears to me, that the verdict in both the last two causes is wholly unsupported by the' evidence.

The defendant appears, in both cases, to have received “ information” from other persons, which led to the seizure and final condemnation of the ships, and their cargoes; and those persons only are entitled to share the proceeds with the United States.

The result is, that there must be a new trial; and as it may be material that another point, made by the defendant’s counsel, should be put at rest by the court,-1 proceed briefly to consider it. I allude to the effect of the settlement of this transaction by the defendant with the treasury department. These vessels and their cargoes were all condemned in the district court of New-York, and sold by the marshal.

The 90th sec. of the duty act, after directing that all ships, &c. condemned, &c.. shall be sold at public auction by the marshal, provides, that the marshal shall pay the amount of such sales, deducting all proper charges, to the clerk of the court directing such sale, to be by him {after deducting the charges allowed by the court,) paid to the-collector of the district. By the 39th sec. it is made the duty of the collector, to cause suits to be brought for all infractions of the act, and prosecuted to effect ; and he is 66 authorized to receive • from the court within which such trial is had, or from • the proper officers thereof, She sum or sums so recovered, after deducting all proper charges io be allowed by the said court and on receipt thereof, the collector shall pay and distribute the same, without delay, according to law, and transmit, quarter-yearly, to the treasury,; an account of all monies received by him for fines, penalties, .and forfeitures, during such quarter/5 From these provisions -of the act of congress, it will be seen, that the collect^ received the net proceeds of these vessels and cargoes, a?F the. costs and charges having been allowed and taxed by the court 5 Shat he is made the agent for all parties who have an interest in the forfeiture, and is to pay and distribute the money when received, and that he is to account at the treasury, quarter-yearly, for all the money received for fines. I am persuaded that it Is enough to state the case, to show that the settlement made at fche treasury ought to have been received as a prima facie evidence, at least, of its fairness and correctness. This, however, would not form a ground for a new trial, as the plaintiff offers 6o remit the sum which ought to have been deducted 5 the amount being stated in the case.

There must be a new trial, with costs, to abide the event of the suit.

New trial granted.  