
    BRADLEY’S CASE.
    Peter Bradley, administrator, v. The United States.
    
      On the Proofs.
    
    
      Bradley, without knowledge of specific frauds, informs the collector of New Orleans that frauds are being committed in the euslom-house on weights and classification oj sugars. The collector employs him to ferret them out. About the same time the naval officer suspects an importer and orders that his sugars be not withdrawn. He then appoints Bradley as cleric to make an examination and “ work up the sugar cases.” Bradley procures samples and brings them to the naval officer, a seizure is made in the presence of the naval officer and of Bradley. The sugars are, libelled and forfeited. The Secretary of the Treasury decides that there was no informer or seizing-officer, and distributes thoproends, one-half to the United States, one-half to the collector, surveyor, and naval officer.
    
    
      I. The jurisdiction of district courts over suits for penalties and forfeitures, and in regard to the rights of informers and seizing-officers and persons entitled to share in the distribution, examined and stated.
    II. The power of the Secretary of the Treasury to distribute the proceeds of fines, penalties, and forfeitures, under tho Act 2d March, 1867, (14 Stat. L., 540; Rev. Stat., § 3,090,) which provides that they shall he “ distributed under the direction of the Secretary,” examined.
    III. Tlie jurisdiction of this court over suits brought by iuformers and seizing-officers to recover a share of fines, forfeitures, or penalties which have been paid into the Treasury examined.
    IY. An informer within the meaning of the Act 3d March, 1867, (14 Stat. L., 546,) is one who gives the first information in consequence of which a seizure is made and a forfeiture consummated. Suspicions, rumors, and geueral information that fraud is practiced in the importation of an article do not constitute such information.
    
      The Reporters' statement of tlie case:
    The following are the facts as found by the court:
    
      , I. August Couturie & Co. were importers and commission-merchants in Hew Orleans, La., aud during the spring of 1809 and up to Juue of that year imported iuto the port of New Orleans several cargoes of sugar, by different vessels, including amoDg them the Dexter Washburn.
    II. The sugars on arrival were entered, examined, appraised, weighed, and liquidated, and the duties to be paid on each box or package were ascertained and fixed by the proper revenue officers, aud stored in bonded warehouses, except the cargo by the Dexter Washburn, the disposition of which is not proverb
    III. In the month of April, 1809, James F. Casey was appointed collector of the port; James Lougstreet, surveyor; aud Charles Dillingham, naval officer; and P. J. Ilerwig, special deputy collector, all entering upon their duties during that mouth.
    IV. About the time of the appointment of said officers, miners were current in commercial circles, on the street, and in tne newspapers of New Orleans, that frauds had been aud were committed in the importation and entry of sugar for payment of duties at the custom-house, but it is not proved that any person there knew of any facts establishing evidence of such frauds.
    V. Collector Casey wrote to the Treasury Department on the subject, and a special agent was sent to New Orleans to investigate the matter. He also directed the preparation, from the bóoks of his office, of an abstract of all sugars shipped to that port, and took other measures to detect the frauds. In May, 1869, one Beares informed Collector Casey, from information received from claimant, that frauds were committed in the cus- ' tom-house on weights and classification of sugars, but specified no facts, and it does not appear that they knew of any. Collector Casey, on the 5th of June, employed said Beares and the claimant “ to ferret out these frauds.” The next day said Beares and said Bradley visited the schooner Dexter Washburn. Mr. Bradley took samples and Mr. Beares took cognizance of the weights. The latter reported to Mr. Casey, who referred him to Mr. Herwig. They then waited until the loth or 16th of June, until the report of the schooner was handed in to the custom-house, and then made their report to Mr. Herwig that there was committed fraud in the weights a,nd classification of sugar on that schooner.
    YI. After Naval Officer Dillingham entered upon his duties he began to make himself familiar with the workings of his office, and examined the different books kept there. Finding that Couturié & Co. were large importers of sugar, and that their sugars were all entered of low grades and weight, his suspicion was excited. He then went to an acquaintance of his, one Perkins, and obtained from him a sample and the weights of sugars purchased the day previously of said Couturié & Co. By comparison he found the sample to be of grade No. 20, Dutch standard, whereas the sugars withdrawn by Couturié & Co. the day before had been entered at the custom-house and withdrawn and duties paid thereon as not above No. 12, Dutch standard, the latter paying two cents a pound in coin less rate of duties than the former. He also found a difference in weight, ■the sugars having been sold at 420 pounds per box and withdrawn from the custom-house at 383 pounds per box. On the same day, about June 12, he gave orders not to allow Couturié & Co. to withdraw any more sugars; and none were thereafter withdrawn by'them, although they made the attempt.
    YII. Dillingham thereupon consulted with the United States district attorney, and with Mr. Sheldon, member of Congress, and it was decided to take samples of all sugars in the bonded warehouses. Having a vacancy in the clerkships, he told Sheldon that he was going to appoint a man whom he could send out to make the examination, and Sheldon recommended the claimant, and shortly afterward brought him to the office and introduced him to Dillingham. On the 17bh of June Dillingham appointed the claimant as clerk in his office, and the first duty assigned to him was in getting samples of sugars in bond from the warehouses. The claimant was employed to act under the direction of the nav-al officer in investigating and seizing the sugars, and in “working up” the sugar cases.
    Between the 19 th and 25 th of June claimant proceeded to the bonded warehouses, examined and took samples of Couturié & Co.’s sugars, carried the same to the naval office, and delivered them to Mr. Dillingham.
    VIII. On the 29fch of July, 1869, the sugars (in the warehouses, under the charge of a Government superintendent and storekeeper) belonging to said Couturié Ss Co. were seized by an order from the superintendent to the storekeeper, of which the-following is a copy:
    “U. S. Custom-House, W. II. Sup’d’t’s Opetce,
    
      "New Orleans, July 29, 1869.
    “Sir: In compliance with instructions received under date of June 29th, 1869, I have this day seized the following-described merchandise, stored in U. S. bonded warehouse Ho. 4, class 3, imported by Messrs. Aug. Couturié & Co.:
    
      
    
    “Respectfully,
    “ J. L. HERWIG, W. R. Swp’d’t.
    
    “To James Wilder, 8. K. No. 4, Class 3.”
    There were present at this time Mr. Herwig, the deputy collector, Mr. Dillingham, the naval officer, the claimant, and the superintendent and storekeeper of the warehouses. No direct acts of taking possession of said sugars by anybody present are proved, and no acts of seizure except what appear from said notice. The sugars were in possession of the warehouse officers until they were subsequently removed to the customhouse building.
    IX. Said sugars so seized were libeled in the United States district court in Louisiana for forfeiture on account of violation of the revenue laws, condemned, sold, and the net proceeds, after the deduction of expenses and legal charges, were paid into the Treasury, and distributed under the direction of the Secretary of the Treasury, one-half to the United States, and the same was covered into the Treasury; and one-fourth was equally^ divided between the collector, surveyor, and naval officer, and paid to them without controversy or objection.
    X. Of the other one-fourth .part, amounting to $29,073.99, the present claimant and others were before the Secretary of the Treasury as adverse claimants, each claiming the whole as informer or seizing-officer, and the collector, surveyor, and naval officer also claimed the same on the ground that there was no informer or seizing-officer.
    On the 9th of May¿<1872, the Secretary of the Treasury decided that there was no informer or seizing-officer, and directed the distribution of said one-quarter to said collector, surveyor, and naval officer, which rvas accordingly done in equal parts to each.
    • XI. At the time said money, so ordered to be distributed as set forth in the next preceding finding, was paid over to said officers, the Secretary of the Treasury required of each of them, as a condition precedent thereto, a bond of indemnity in the following form:
    “ Know all men by these presents that we,-, of the city of Xew Orleans, in the State of Louisiana, as principal, and-■— and-, both of the city of Hew Orleans, Louisiana, as sureties, are held and firmly bound unto the United States of America in the just and full sum of twelve thousand dollars, money of the United States, to which payment, well and truly to be made, we bind ourselves jointly and severally, our joint and several heirs, executors, and administrators, firmly by these presents, sealed with our seals, and dated tliis ninth day of May, in the year of our Lord one thousand eight hundred and seventy-two.
    “The condition of this obligation is snch, that whereas the said-is awarded by the Secretary of the Treasury of the United States, on this ninth day of May, 1872, the sum of nine thousand six hundred and ninety-one dollars and thirty-three cents in satisfaction of his claim as ¡collector, surveyor, or naval officer,] in the absence of any informer or seizing-officer to an additional share of the proceeds of forfeiture in the following-described cases, to wit: United States against Bight hundred and fifty-five boxes of sugar; United States against Pour hundred and sixty hogsheads and forty-six tierces of sugar; United States against One thousand boxes of sugar; United States against Two hundred and fifty hogsheads of melado; United States against Two hundred and nine hogsheads of sugar; United States against One thousand three hundred boxes of sugar:
    “Bow, therefore, if the said -- -*-shall, in case it shall be decided by the United States Oourt of Claims, or, if appeal is taken, by the Supreme Court of the United States, that any other peráon than the said-is entitled to share as informer or as seizing-officer in the above-described cases, return to the Treasury of the United States, on demand, the money paid him under the above-stated award, then this obligation to be void and of no effect; otherwise it shall abide and remain in full force and virtue.”
    And each of said officers gave such bond, duly signed, sealed, executed, approved, and accepted by the Secretary of the Treasury, in accordance with said requirement.
    XII. In the proceedings for forfeiture before the. United States district court aforesaid, no claimant appeared asking a decree of said court in his favor for án informer’s share, or for the distribution of said net proceeds of the sale of the sugars so forfeited.
    XIII. The first information of actual frauds committed in relation to said sugars so seized, forfeited, sold, and the proceeds thereof distributed, was obtained by said Dillingham about the 12th of June, 1869, through his own investigations when he procured samples from Mr. Perkins and made comparisons as set forth in the sixth finding, and that was the information which first led to the seizure.
    
      XIY. Dillingham had no knowledge of the rumors of frauds prior to his entering upon his office, and Bradley, the claimant, had such knowledge of rumors. He was reputed a skillful detective, and had been engaged in an effort to trace out frauds in relation to the importation of sugars previously to his entering thecustoms service, and continued such efforts until proceedings were instituted for forfeiture. He was a material witness upon the trial for the forfeiture in the district court of Louisiana mentioned in the findings.
    ■ XV. In the proceedings for forfeiture before the United States district court at Hew Orleans, no claimant appeared asking a decree of said court in his favor for an informer’s share or for the distribution of the net proceeds of the sale of the sugar forfeited before the fund was taken from the registry of the court and paid into the Treasury of the United States; but the claimant Bradley had spoken to counsel to aid him in prosecuting his claim while the cases were on trial, and he was killed before the cases were finally disposed of in the court.
    XVI. The order of July 29, 1869, does not cover the sugars in Couturié’s private bonded warehouse, but only those in the public warehouse Xo. 4, class 3, in charge of Wilder, but said order covers all the sugars the seizure of which is proved.
    
      Mr. 0. E. JT.ooe\j and Mr. Alexander P. Morse for the claimant:
    By the decided cases it is not required that the information shall be as full as the evidence which may ultimately be given at the trial. “It is sufficient if it be acted upon, induces the prosecution, and contributes essentially to the recovery.” (Sawyer v. Steele, 3 Wash. C. C., 469.)
    The informer is he who, with the intention of having his information acted upon, first gives information of a violation of law which induces the prosecution and contributes to the recovery of the forfeiture. (United States v. George, 6 Blatch., 418.)
    If the Government officers were already aware of the offense, but were unable to trace the goods, and the informer supplied the necessary facts, * * * in this and similar cases, the person who gave the information by which the forfeiture was in fact decreed.would be within the fair intent of the act. (United States v. Distilled Spirits, 8 Int. Rev. Record, 20.) Something more is required than a mere statement that a fraud has been committed. The information must be that which led to the seizure and recovery of the forfeiture. In the language of the decisions, it must have been acted upon, induced the prosecution, and contributed to the recovery. Even admitting that the officers have reason to suspect frauds, yet we submit that it is shown that Bradley made the investigations and discovered the facts which developed these particular frauds; that he seized the sugars, and was a material witness on the trial which resulted in the forfeiture; that he alone gave the information by which the forfeiture was in fact decreed, and was the informer within the fair intent of the act.
    There may or may not be any informer other than the collector, naval officer, or surveyor, but there can be no proceeding for forfeiture without a seizure of the goods to be forfeited, and if there is a seizure there must be a seizing-officer. In this ease we claim that Bradley is shown not only to have been the person who gave the information which led to the seizure and recovery of the forfeiture, but also to have been the officer who made the actual, seizure, and in either case entitled to the -fund. But it is claimed that Bradley about the time of the trial disclaimed any interest as informer. We submit that this allegation is not sustained by the transcript of his testimony, and is disproved by the testimony of Whitaker before referred to. But taking it as strong as can be claimed, there is nothing which can bar the present claim. “It is not necessary that the informant should accompany the communication which he makes by an assertion of his claim to a share of the forfeiture. It is sufficient for him to show that the information which he gave caused the prosecution and recovery.” (Sawyer v. Steele, 3 Wash. O. 0., 464; The Gity Bank v. Bangs, 2 Edwards, ch. 105.)
    The most that can be made out of Bradley’s testimony before the court is an attempt to evade the question, but he most explicitly declines to say that he will not thereafter claim. His effort clearly was not to commit himself upon the question in any way, and there were, apparently, ample reasons why he might not then have wished to commit himself upon this point, or to have his true position in the case known to the public, and subsequent events have perhaps shown that it would have been better if he had never had any connection with the case. But there is no evidence upon this point which is not fully met by the decision in the case of TheBank v. Bangs. Wesubmit, therefore, that Bradley is entitled to this fund, both as informer and seizing-officer, and that the collector, naval officer, and surveyor, who are the actual contestants to this claim, were not, and cannot, under the law, be entitled to any part thereof.
    
      Mr. Joseph K. MeOammon (with whom was the Assistant Attorney-General) for the defendants:
    The district courts of the United States have jurisdiction of all suits for penalties and forfeitures incurred under any law of the United States, and of all seizures on land, and this jurisdiction is exclusive, (Rev. Stat., 94, § 563,) as the circuit courts are expressly prohibited from taking jurisdiction in such cases, (Rev. Stat., 110, § 629, Fourth.) It has been settled by the courts that the district court, having jurisdiction of seizures for penalties and forfeitures, “ as an incident to the possession of the principal cause, has a right to proceed to decree a distribution of the proceeds according to the terms prescribed by law.” (.MoLcmev. The United States, 5 Peters, 404; The Josefa Segunda, 10 Wheaton, 312, 323, 324; The United States v. Morris, ibid., 290; Sooper v. Fifty-one Cashs of Brandy, Davies R., 271; The United States v. Mfty thousand Cigars, Lowell’s R., 22.)
    In the case of The United States v. George, (6 Blatchford’s R., 37,) it was decided that the introduction of the words “ distributed under the direction of the Secretary of the Treasury” did not abridge the power of the court to decide upon the rights of the parties who are entitled to share in the distribution. The court held that “this jurisdiction being well established, there is nothing in the act of 1867 which takes it away, or which confers on the Secretary of the Treasury any more power to decide disputed claims to the fund than the collector had under the act of 1799. The judicial tribunal which has the custody of the fund is the proper forum to entertain and decide disputes as to shares in the fund, and to direct how it shall be distributed, and to what persons, under the act of 1867, under the direction of the Secretary of the Treasury, as a ministerial officer.” (6 Blatchford, 47.) The district court of Louisiana was the sole tribunal under the law to.decide who, under the act of 1867, were entitled to informers’ or seizing-officers’ share, and to decree distribution of the proceeds after sentence of condemnation. The district court did not decree a distribution, nor does it appear that any claim to the fund before that court was made by Bradley, Jones, or Sheldon, the three claimants for the same one-half moiety now before this court. The claimant, by failure to avail himself of his right to file his petition claiming a part of the proceeds as an informer or seizing-officer in the district court of Louisiana, lost his only chance to recover through legal proceedings.
    If the law recognizes the sole jurisdiction of the district court, whatever the Secretary may do on its failure to' act, because its functions were not appealed to by alleged informers or seizing-officers, the Court of Claims cannot grant relief in a claim which is beyond its power to take cognizance of. The Court of Claims has not concurrent jurisdiction of any action at law or otherwise with any court, except in the case of counter-claims, and it is only necessary to show jurisdiction in another court to prove the want of it in the Court of Claims. When it has been ascertained and decreed by a court of competent jurisdiction, or by the Secretary of the Treasury acting within his discretion, that a certain person is entitled to an informer’s share from the proceeds of forfeitures, it seems that a suit brought by that person in the Court of Claims to recover the amount so decreed or declared to be due him would be entertained by the court. (Brownh Case, 6 C. Cls. B., 171.) This, however, is not the case now presented to the court, because how could the court say that there was an implied contract with Bradley without hearing Sheldon’s and Jones’s, and the collector’s, surveyor’s, and naval officer’s claims for the share in dispute?
   Btchardson, J.,

delivered the opinion of the court:

In the year 1869 a mercantile firm in New Orleans imported a large quantity of sugars, which were seized for violation of the revenue-laws on the part of the owners, and by proceedings in the district court of the United States for Louisiana were forfeited, sold, and, after deduction of the cost, expenses, and legal charges, the net proceeds were paid into the United States Treasury. No party appeared before said court as claimant to any share*of the forfeiture, either as collector, surveyor, naval officer, informer, or seizing-officer.

The Secretary of the Treasury distributed one-half the amount to the United States, and the same was covered into the Treasury, and one-quarter to the collector, surveyor, and naval-officer, in equal shares, without objection.

As to the other quarter a controversy arose. It was claimed by the present claimant as informer or seizing-officer, by several other persons, each as informer, and also by the collector, surveyor, and naval officer, on the ground that there was no informer and no seizing-officer other than one of themselves.

On the 27th of April, 1872, the claimant commenced this action to recover said one-quarter share alleged therein to be due to him as informer or seizing-officer.

On the 9th of May, 1872, the Secretary of the Treasury decided that there was no informer and no seizing-officer other than the collector, surveyor, and naval officer, and, following the opinion of Attorney-General Stanbery, (12 Opins. Attys. Gen., 291,) ordered the money to be paid to those three officers in equal parts. But, before paying the same, the Secretary required of each of said officers a bond of indemnity, with sureties, obligating themselves to refund said money to the Treasury in the event of this case being decided in favor of the claimant by this court, or, on appeal, by the Supreme Court. The bonds v ere so given, approved, and accepted, and the money was thereupon paid in accordance with said order of distribution.

The United States set up two distinct defenses, one to the jurisdiction of the court, and the other to the claim on its merits. We will consider them in the order stated.

The district courts have, and always have had, jurisdiction of suits for the recovery of penalties and forfeitures incurred under any law of the United States. (Act September 24, 1789, 1 Stat. L., 76, § 9, ch. 19; Kev. Stat., § 563.)

By the Act March 2, 1799, section 89, the money recovered in such suits, after deducting all proper charges to be allowed by the court, was required to be received by the collector of customs, who was thereby required “ to pay and distribute the same, without delay, according to law.” (1 Stat. L., 696.) Section 91 provided how the same should be divided among the officers, informers, and the United States. -

Under this law it was held that while the money was within its control the court had jurisdiction to hear and to determine the claims and rights of all parties who demanded to share in the fund arising from forfeitures, and when adjudicated that the collector was bound to pay the same according to the decree of court. Judge Story, iu 1832, said: “ When a sentence of condemnation has been finally pronounced in a case of seizure, the court, as an incident to the possession of the principal cause, lias a right to proceed to decree a distribution of the proceeds according to law. And it is a familiar practice to institute proceedings of this nature whenever a doubt occurs as to the rights of the parties who are entitled to share in the distribution.” (McLane v. The United States, 6 Peters, 404.)

And this opinion has ever since been adopted and followed by the district courts. (Wescott v. Bradford, 4 Wash. C. C. R., 492; Ex parte Cahon, 2 Mason R., 85; La Jeane Eugenie, ib., 409; Hooper v. Fifty-one Casks Brandy, 2 Ware R., 371; The United States v. Fifty thousand Cigars, 1 Lowell R., 22; The United States v. Morris, 10 Wheat. R., 290; Jones v. Shore's Executors, 1 id., 462; The United States v. George, 6 Blatch. R., 45.)

When there was no claimant to the proceeds after forfeiture, as informer or otherwise, before the court in the principal cause, and the money was paid to the collector, the jurisdiction of the district court over the fund and the distribution of the same as incident to the original action terminated. Bat then arose, without express statute provision therefor, and solely on general principles of law, the right of claimants to bring their independent actions of assumpsit against the collector to recover the respective shares to which they might prove themselves entitled. The collector was regarded and treated as merely a ministerial officer, whose duty was to pay the money in his hands to the parties to whom it belonged, when there was no controversy or objection, or when claimants had established their rights by ordinary proceedings in the courts of law, without authority to finally determine the conflicting claims of adverse parties. And suits at law were from time to time brought and maintained against collectors in such cases, and those officers retained the money in their hands, often to large amounts, to await the event of pending actions against them. (Brewster v. Gelston, 1 Paine R., 426; Sawyer v. Steele, 3 Wash. R., 464.)

The Act March 2, 1867, (14 Stat. L., 540, ch. 188; Rev. Stat., § 3090,) provides that after the reduction of charges and expenses, and in certain cases the duties, the residue of the proceeds of fines, penalties, and forfeitures incurred under the provisions of the laws relating to the customs ‘‘shall be paid into the Treasury of the United States, and distributed under the direction of the Secretary of the Treasury” to the informer, seizing’ officer, and other officers, and the United States, as therein specified. Judge Blatchford, in the district court of the southern district of New York, in the case of The United States v. George, (6 Blatch., 33,) reviews with great care the effect of this law, and holds:

1. That the money when received into the registry of the court is not payable directly into the Treasury of the United States, but must be paid to the collector of the port as before, and that the collector, after deducting duties and other charges, must pay the same into the Treasury.

2. That while the money remains in the registry the court has the same jurisdiction which it had previously to determine the rights of parties claiming the fund as informers, officers, and otherwise, and the court having made a decree determining these rights, the Secretary of the Treasury, when the money reaches him, is bound to distribute the same accordingly.

In his opinion in that case Judge Blatchford says: “The effect of the change made by the act of 1867, in regard to the channel of distribution, is merely to substitute the Treasury of the United States as aplace of deposit for the money, when nothing is left to be done in regard to it but to distribute it, and to substitute the Secretary of the Treasury for the collector as-a ministerial agent of distribution.” And as to the jurisdiction of the district courts, he adds: “ This jurisdiction being well established, there is nothing in the act of 1867 which takes it away or which confers on the Secretary of the Treasury any more power to decide disputed claims to the fund than the collector had under the act of 1799. The judicial tribunal which has the custody of the fund is the proper forum to entertain and decide disputes as to shares in the fund, and to direct how it shall be distributed, and to what persons, under the act of 1867, under the direction of the Secretary of the Treasury as a ministerial officer.”

If, then, the Secretary of the Treasury is, by the act of 1867, merely substituted for the collector as a ministerial officer to distribute the funds, and the distribution is to be under his direction only as such ministerial officer, and if- while the money is under its control the court in which the suit for forfeiture is pending may still determine, as under the law of 1799, the rights of parties thereto by a decree which the Secretary is bound to obey, it would seem to follow logically that after the money had passed beyond the control of the court parties claimant did not lose their right of action to have their respective shares and claims determined by a court of law, although they would be remitted to a different judicial forum, by reason of the fact that the money had passed into the public treasury, and the United States are liable to action only in this court.

The collector could no longer be sued, nor would an action lie against the Secretary of the Treasury, personally, because the money is not in his hands, but in the Treasury of the United States.

The statute allows to certain officers and informers fixed shares of the fund, not to be altered or controlled at the discretion of any one. It is only to be determined who, in fact and in law, are the parties, if any, who have those rights, and if the Secretary is only a ministerial officer, without power to settle conflicting claims, this class of cases would seem to be within the jurisdiction expressly given to this court to hear and determine cases wherein the United States having money due or claimed to be due to parties by statute law or contract refuse to pay the same.

The claims of such parties certainly seem to be founded on a law of Congress or on contract within the meaning of Revised Statutes, § 1059. It was solely upon the ground of implied contract that actions were maintained against collectors under the act of 1799.

The jurisdiction of this court can be drawn in question only on the ground that the Secretary of the Treasury is something more than a ministerial officer in this matter. There is quite as much reason why i>arties claimant to such funds should have the right to have their respective claims determined by a court of law, now that the money is to be distiibuted under the direction of the Secretary of the Treasury by the act of 1867, as there was when it was to be paid out by the collectors under the law of 1799, for the Secretary of the Treasury has no better facilities for hearing, trying, and determining disputed questions of fact, involving the examination and consideration in many cases, as in this, of hundreds of pages of manuscript documents, and evidence taken ex parte, and much less time to devote to that duty, than had the several collectors of customs ; the Secretary having now all the cases and all the duties in that respect which were before distributed among the numerous collectors throughout the country.

The object of the law of 1867, requiring the transfer of money collected from fines, penalties, and forfeitures to be paid into the United States Treasury, was no doubt for the- purpose of preventing a large accumulation of money in the hands of collectors of customs and to insure its more safe keeping. It is a well-known historical fact that such was the object of Congress, in 1839, in passing the provisions of the act of that year, (Act March 3, 1869, 5 Stat. L., 348, § 2,) requiring collectors to pay into the public treasury all money received by them for unascer-tained duties, or for duties paid under protest, the retention of which to await the result of suits pending against them therefor had just previously led to great aud notorious frauds and losses. (Carey v. Curtis, 3 How., 413.) The Supreme Court decided that this act of 1839 took away the right of action against collectors by parties who had paid duties under protest, (Carey v. Curtis, above cited,) and there being then no Court of Claims, and the United States not being liable to actions, parties were wholly without legal remedy in the courts of law. This result appeals to have been accidental, aud not intended by Congress, and as soon as that decision was rendered the right of action was restored. (5 Stat. L., 727.)

So the act of 1867 was manifestly not passed for the purpose of depriving parties of all resort to the courts of law for the determination of their controverted claims to funds arising from forfeitures, nor for the purpose of conferring upon the Secretary of the Treasury the power to determine judicially or as a matter of discretion who, as officers or iuformers, are entitled to share in such funds. The language of the act is that the money shall be distributed “under his direction,” not according to his discretion, nor upon his award or decision.

If then, again, the Secretary of the Treasury is to be regarded as only a ministerial officer with respect to such funds, as was the collector of customs under the former act, the jurisdiction of this court would seem to be sustained by the principles which we have recognized in the cases of Horace Boughton and George W. Campbell et al., (ante. pp. 330-470.)

There is a special reason, in connection with the considerations which we have set forth, why this court' might perhaps be justified in taking jurisdiction of this action. It will be seen that the Secretary of the Treasury exercised his power and distributed the money in question conditionally, making the payment depend upon the giving of bonds by the distributees, to refund the same in case this court, or the Supreme Court on appeal, should decide that any other person is entitled to share as informer or seizing-officer.

The Secretary thus expressly submitted the matters now in controversy to the determination of this court, so far as it was within his power to do so. As to the claimant, the action of the Secretary was the same, jiractically, as though he had refused to pay the money to any one. Of course the Secretary of the Treasury cannot confer jurisdiction where none is given by statute, but, if there be concurrent jurisdiction, the Secretary might decline to exercise his power and might turn the parties over to this court for their legal remedy. Or if the jurisdiction of the court depends, in such cases, upon the Secretary himself not undertaking to determine conflicting rights, and his refusal to make distribution whenever a conflict arises, on the ground that he is a ministerial officer with power to pay the money only when there are no controversies, or when all controversies have been j ndieially determined, as was the case with collectors when they made such distribution, then the action of the Secretary in this may be taken as a refusal to distribute the money in question.

But this question of jurisdiction was not argued by claimant’s counsel, and therefore, as well as because we do not find it necessary to pass upon it while reviewing the statutes and decisions far enough to make it apparent that a solution of the question may not be free from difficulty, we express at this time no final opinion on the subject. And we do this especially bécause the question may arise in other cases, when we shall have the benefit of a thorough examination and full arguments on both sides, and can better form a correct opinion thereon.

We are satisfied that on the merits the claimant has no cause of action. He claims as an informer and as seizing-officer, and if he had proved himself to have been either he would be entitled to one-quarter part of the forfeiture according to the provisions of the Act March 3, 1867. (14 Stat. L., 546, ch. 138.)

An informer, within the meaning of the statute, is one who gives the first information, in consequence of which a seizure is made and forfeiture consummated. The communication of a vague rumor, commonly known in commercial circles and elsewhere, that a person has committed frauds against the revenue, without some information as to what frauds have been committed and some clew to their detection, does not constitute one an informer within' the meaning of the statute. (13 Opins. Atty. Gen., 239.)

The facts show conclusively, we think, that the claimant not only did not inform the Government officers of the frauds upon which the forfeitures in this case were founded, but also that he had no actual knowledge of those frauds or any others com-, mitted by the same parties.

In May, through another party, he informed Mr. Collector Casey that frauds were committed in the custom-house on the weights and classification of sugar. This was only repeating a rumor current, as the facts find, on the street, in commercial circles, and in the newspapers. In consequence of this information, such as it was, the collecter, on the 5th of June, did employ the claimant and the other party referred to for the purpose of ferreting out the sugar-frauds, and his immediate action shows that he had no real knowledge of any frauds committed/ Instead of seeking to ferret out frauds already committed, he set himself about watching for future cases. He went on board the Dexter Washburn, then in port with a cargo of sugar on board, took the weights and obtained samples, and then waited until the owners had entered their sugar at the custom-house, when he presented his weights and samples to the collector for comparison.

If, by this comparison, frauds were thereupon detected, it was in consequence of his direct information obtained in part through his labor and services while in the employment and pay of the Government as an officer detailed for the purpose of procuring this very information. That an officer of the customs-service, as well as a private citizen, may be an informer, entitled to share in forfeitures, is no doubt true, but it is only when he obtains his knowledge “incidentally, and not in the direct prosecution or course of his duty or of any special retainer for that purpose.” On this subject Judge Lowell, of the United States district court for Massachusetts, has well stated the rules applicable thereto. He says:

“It is not denied that some officers of the customs, other than the collector himself and the surveyor and naval officer— all of whom share in all the forfeitures — may themselves b© informers. This has been decided so far as inspectors are concerned, and perhaps is true of deputy collectors. (Hooper v. Fifty-one Casks of Brandy, Davies R., 370; Brewster v. Gelston, 11 Johns. R., 390; Sawyer v. Steele, 3 Wash., C. Cls. R., 464.) And. as to officers of revenue-cutters, the act is explicit in their favor; but I am not aware that it has ever been said or thought that an officer, being charged with the special duty of searching a vessel, in pursuance of definite information given by another person, could become the informer by reason of the diligence, fidelity, and success with which he prosecuted the search and found what he was sent to seek. To allow this Avould be contrary to the general principles of law and to the interest of the revenue laws, which expect the collector and his subordinate officers to pursue the course indicated by the information with all the means and efforts that may be necessary.” (The United States v. Fifty Thousand Cigars, 1 Lowell R., 22.)

And again the same learned judge says:

“In my view, the cases in which an officer may be an informer are, where he incidentally, and not in the prosecution or course of his duty or of any special retainer for that purpose, makes a discovery, as if an inspector, put on board of a vessel merely to keep the cargo safely, discovers smuggled goods concealed, or where an officer set to inquire into a particular charge discovers something entirely different and before unsuspected, or where he is told by some one as a friend aud not as an officer of facts which his informant, not wishing to be known, refuses to bring forward himself, but tells him for the very purpose of enabling him to give information in his own name — in these cases an officer may be an informer. I do not at present think of any others. Mr. Hawley’s case, which has given me more trouble than any other, must be governed by these considerations. In my judgment, his retainer as a revenue-agent, under pay, to investigate these frauds, makes his time the time of the Government and his information the information of the Government, and he cannot justly lay claim to any share of this reward.” (The United States v. Barrels Distilled Spirits, 8 Int. Rev. Record, 20.)

The information obtained by the present claimant as to the sugars on board the Dexter Washburn did not lead to the seize ure and forfeiture in tbis case. The sugars, tbe forfeiture of which he is now seeking to share in, were another lot, stored in warehouses, and the frauds were ascertained from a different source.

Mr. Dillingham, the naval officer, by investigations instituted by himself alone, discovered the frauds in relation to the warehouse sugars which were subsequently seized, and afterward he took the claimant into his pay and service as a clerk for the Government in his office “to work up the cases” and to act under himself in further investigations. But this was not until the naval officer’s investigation had proceeded so far that he had impounded the sugars and given directions to the official custodian thereof to allow none of them to be withdrawn, and none were thereafter removed by tbe owners, although they made an effort at such withdrawal. And the fact found is that the discovery made by the naval officer was the first information which led to the seizure.

Not being an informer, was the claimant, then, a seizing-officer in that sense which would entitle him under the statute to one-quarter part of the forfeiture.?

This large share, equal to that given to the collector, surveyor, and naval officer together, was offered by the statute to the seizing-officers, no doubt, to compensate them for their vigilance and activity, and for the great labor, peril, and personal risk and liability to which they might be subjected. When, however,-as in this case, the articles to be seized were in warehouses under the control and in the custody of revenue-officers, appointed to guard and retain them until authorized by the collector to permit their discharge, the only seizure required was a technical one, for the sole purpose of laying the foundation for legal proceedings for forfeiture, and that was done by a simple authoritative notice to the warehouse-keeper, in the presence of the goods, that the articles were seized, with directions to retain them.

It seems to have been the practice of the Treasury Department' to hold that in such case there could be no seizing-officer .within the meaning of the act of 1867. The Attorney-General, in 1869, expressed a different opinion on the abstract proposition, not having before him, however, a case in which it was necessary to determine under exactly what circumstances and by what acts an officer in such case became such seizing-officer entitled to share in the forfeitures. (13 Opinions, 255.)

But the facts found in this case do not render it necessary to determine whether a clerk of the Government in the naval office, who is sent to execute the order of his superior officer in the technical seizure of property in the custody of other revenue-officers, for the purpose of laying the foundation for proceedings of forfeiture, either as the medium of the transmission of a written order to the custodian of the property or otherwise, would be a seizing-officer or not.

The present claimant did absolutely nothing in the matter of this seizure. It seems to have been made by an order from the collector to the superintendent of the warehouses where the property was stored, and by him transmitted in writing to the storekeeper having the immediate custody of the property, and nothing more was done. At the time the seizure took effect there were present the naval officer, deputy collector, and superintendent and storekeeper of the warehouses, as well as the claimant, and he was only a witness to the proceedings.

Under these circumstances the claimant was not the seizing-officer, and, as we have before shown, he was not the informer.

His petition must, therefore, be dismissed on the merits.

Boring- and Peok, JJ., heard this case, but were absent when it was decided.  