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therefore orders that the judgment of the circuit court be affirmed with costs.

KEENE

V.

THE U. S,

THE UNITED STATES v. RIDDLE.

ERROR to the circuit court of the district of The law puColumbia, which had affirmed the sentence of the nishes the attempt, not the district court restoring certain cases of merchan- intention to dedise which had been seized by the collector of fraud the revenue by false Alexandria, under the 66th section of the collection invoices. law of 1799, vol. 4. p. 388. because the goods were not "invoiced according to the actual cost thereof, at the place of exportation," with design to evade a law may be part of the duties.

A doubt concerning the construction of

good ground for seizure, and authorize a certificate of

The goods were consigned by a merchant of probable cause. Liverpool, in England, to Mr. Riddle, at Alexandria, for sale, accompanied by two invoices; one charging them at 671. 5s. 6d. the other at 132/. 14s. 9d. with directions to enter them by the small invoice, and sell them by the larger. Mr. Riddle delivered both invoices and all the letters and papers to the collector, and offered to enter the goods in such manner as he should direct. The collector informed him that he must enter them by the larger invoice, which he did. But the collector seized them as forfeited under the 66th section of the collection law of 1799, which enacts, "that if any goods, wares or merchandise, of which entry shall have been made in the office of a collector, shall not be invoiced according to the actual cost thereof at the place of exportation, with design to evade the duties thereupon, or any part thereof, all such goods," &c. "shall be forfeited." The same section contains a provision for the appraisement of the goods by two merchants in case the collector shall suspect that the goods are not invoiced at a sum equal to that at which they have been usually sold in the place from whence they were imported, with a pro

THE U. S. viso that such appraisement should not, upon the trial, be conclusive evidence of the actual and real cost of the said goods at the place of exportation.

V.

RIDDLE.

Rodney, Attorney-General for the United States, contended, that as the goods were invoiced lower than their actual cost, with intent to defraud the revenue, they were not invoiced according to their actual cost with the like intent; and the goods having been actually entered, although not by the fraudulent invoice, they were within the letter of the law, and ought to be condemned. Besides, it does not appear that the higher invoice was according to the actual cost.

Swann, contra.

The lower invoice was probably what the goods cost the consignor, who manufactured them. The higher invoice was what such goods were then selling for at that place.

But even if a fraud was contemplated, it was not carried into effect. No entry was made, nor attempted to be made by the consignee, upon the false invoice. It was made upon the true invoice, and in conformity with the directions of the collector.

In this case we hope there will be no certificate of probable cause. The conduct of the consignee has been fair and honourable in every respect. A doubt concerning the construction of a law is not a reasonable cause of seizure."

MARSHALL, Ch. J. delivered the opinion of the court to the following effect;

The court thinks this case too plain to admit of argument, or to require deliberation. It is not within even the letter of the law, and it is certainly not within its spirit. The law did not intend to punish the intention, but the attempt to defraud the

revenue.

KEENE

V.

But as the construction of the law was liable to some question, the court will suffer the certificate THE U. S. of probable cause to remain as it is. A doubt as

to the true construction of the law is as reasonable a cause for seizure as a doubt respecting the fact.

Sentence affirmed.

HIMELY v. ROSE,

take

errors appear

If the proper

THIS was an appeal from so much of the final It is not neces sentence of the circuit court for the district of South sary to exceptions to Carolina, rendered upon the mandate from this court the report of issued upon the reversal of the former sentence of auditors, if the that court, (see ante, vol. 4. p. 292.) as affirmed the upon the face report of auditors appointed by the court" to inquire of the report. and report whether any, and if any, what deductions ty, ordered to are to be allowed for freight, insurance and other be restored, be expenses which would have been incurred by the not to be paid. owners in bringing the cargo into the United States, and also to ascertain and report the interest to be paid by the claimant to the appellant," so far as that report allowed interest to the appellant, and disallowed the expense of insurance to the claimant.

This court, in reversing the former sentence of the circuit court, decreed as follows: that the Sarah and her cargo ought to be restored to the original owners, subject to those charges of freight, insurance and other expenses which would have been incurred by the owners in bringing the cargo into the United States; which equitable deductions the defendants are at liberty to show in the circuit court. This court is therefore of opinion, that the sentence of the circuit court of South Carolina ought to be res versed, and the cause be remanded to that court in order that a final decree may be made therein conformably to this opinion."

Vol. V.

Rr

sold, interest is

HIMELY

V.

ROSE.

Upon receiving the mandate from this court. to carry its sentence of reversal into effect, the circuit court directed a reference to auditors in the terms above stated; and the auditors reported "that the claimant is not entitled to any insurance, but that he ought to be allowed freight on the cargo at the rate of one cent per pound for such of it as was in bags, and one and a half cent per pound for such of it as was in casks, and also the sum of 500 dollars for expenses incidental to the landing, wharfage, storage, &c. of the cargo, which sums being deducted from the amount of the decree, the claimant must pay the appellant two years' interest on the residue at the rate of seven per cent. per annum.”

Martin and Jones, for Himely, the appellant.

After the express mandate of this court, directing the allowance of freight and insurance, the court below ought not to have referred it to auditors to say whether any thing should be allowed for insurance.

The mandate was silent as to interest; indeed, as the proceeding was in rem, and the decree for restitution, interest could not have been given.

LIVINGSTON, J. Can this court take notice of these errors in the report, if no exception were taken in the court below?

Martin. There were no particular items to which an exception was necessary. The error appears palpably upon the face of the proceedings. And this court, in the case of Murray v. The Charming Betsy, (ante, vol. 2. p. 124.) decided, that exceptions are not necessary if the error appear upon the face of the report itself.

Besides, in an appeal from a sentence of a court of admiralty, the question of fact is opened as well as the question of law.

MARSHALL, Ch. J. Nothing is before this court but what is subsequent to the mandate.

Martin. The auditors have allowed nothing for the expenses of the cargo at St. Jago de Cuba; Himely was as much entitled to those expenses under the decree of this court, as to those incurred in this country.

C. Lee, contra.

There were no exceptions to the report in the court below. It was there regularly confirmed by that court, whose decree ought to be affirmed in this, unless the directions of the mandate have been counteracted in one or both the particulars of which the appellant complains.

The mandate left the claim of insurance open to be adjusted in the circuit court, and unless insurance was proved to have been actually made, nothing should be allowed on that account.

It is now to be presumed and taken as an admitted fact, that no insurance was made by the appellant.

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The interest was properly allowed, unless good reason can be shown in equity why it should not be paid. According to modern usage in commercial controversies, interest is deemed an inseparable incident to the principal debt, the payment whereof is wrongfully delayed. This being the general rule, and the mandate being silent, the allowance of interest is unobjectionable. As the claimant was to have the benefit of equitable deductions, he ought to be subjected to equitable charges. He has had the use of the money, and the other party has lost the interest of it.

The freight and other charges, as well as the value of the cargo, having been amicably arranged by the parties, and there being no appeal as to them, they are not now to be the subject of inquiry or decision.

Upon the question of interest, Mr. Lee cited 3 Dal. 332. Hills v. Ross, and 4 Dal. 289. Crawford v. Willing and Morris.

HIMELY

.y.

ROSE.

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