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1821.

V.

cause it is a debt of record. But a debt of record, in the sense of the common law, is a debt or contract

Spring created of record ; such as a statute staple, or sta

lipa los.

South Carotute merchant, and not one whose previous existence is only admitted of record. The effect of recording

Company. this debt was merely an admission of its existence, and not a change of its nature. It would have been sufficient evidence, if five years had not elapsed after recording, to have sustained an issue on a replication of a new promise to the plea of the statute of limitations. But more than five years having elapsed, it could have no application in this case. It is the opinion of the Court, that the demurrer to the replication is sustained, and that judgment ought to be given for the defendant.

Decree affirmed.

(PRACTICE.)

SPRING et al. v. The South CAROLINA INSU

RANCE COMPANY.

In an equity cause, the res in litigation may be sold by order of the

Circuit Court, and the proceeds invested in stocks, notwithstanding the pendency of an appeal to this Court.

Mr. Hunt, for the respondents, moved to docket March 16th.. and dismiss the appeal in this case, which was a suit in Chancery, commenced in the Circuit Court of South Carolina, no transcript of the record having

1821.

been lodged by the appellants with the clerk of this

Court, within the first six days of the term, accordUnited States

v. ing to the rule. Six Packages of Goods.

Mr. Wheaton, for the appellants, opposed the motion, upon the ground that no certificate was produced from the clerk of the Court below, stating that an appeal had been taken, according to the rule.

The Court denied the motion, but stated that as the object of the respondents was to have the proceeds of the property in litigation, which had been sold by order of the Court below, invested in stocks, such investment might be made by the Court below, notwithstanding the pendency of the appeal in this Court.

Motion denied.

a Vide new rule of Court of the present term. Ante, Rule XXXII.

(INSTANCE COURT.)

The United States v. Sıx PackagES OF GOODS,

Toler, Claimant.

Under the 67th section of the Collection Act of the 2d of March, 1799,

c. 128., where goods were entered by an agent of the owner on his behalf, and the entry included only a part of the goods which the

packages contained, and the owner subsequently made a further, or 1821. post entry of the residue of the goods; and the packages being opened several days afterwards and examined by the collector in the United States presence of two merchants, and their contents found to agree with

Six Packages the two entries taken together, but to differ' materially from the

of Goods. first entry; held, that the collector was not precluded from making a seizure of the goods after the second entry, for a variance between the contents of the packages and the first entry, and that such seizure must be followed by confiscation, unless it should appear that such difference proceeded from accident and mistake, and not from an intention to defraud the revenue.

APPEAL from the Circuit Court for the Southern District of New-York.

This was a libel of information filed in the Court below against certain goods imported from London in the ship Isabella, at the port of New-York, as forfeited under the 67th section of the collection act of the 2d of March, 1799, c. 128.

The cause was argued by the Attorney-General, March 12th. and Mr. Pinkney, for the United States; and by Mr. D. B. Ogden and Mr. Wheaton, for the claimant.

Mr. Justice LIVINGSTON delivered the opinion of March 141h. the Court.

This is a libel under the 67th section of the collection law, passed the 2d of March, 1799.

This section provides, that it shall be lawful for the collector, naval officer, or other officers of the customs, after entry made of any goods, wares, or merchandize, on suspicion of fraud, to open and examine, in the presence of two or more 'reputable merchants, any package or packages thereof, and if, upon examination, they shall be found to agree with

VOL. VI.

66

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the entries, the officer inaking such seizure and exa

mination, shall cause the same to be repacked, and United States

V. delivered to the owner or claimant forth with ; and Six Packages of Goods.

the expense of such examination shall be paid by the said collector or other officer, and allowed in the settlement of their accounts ; but if any of the packages so examined, shall be found to differ in their contents from the entry, then the goods, wares or merchandize contained in such package or packages, shall be forfeited : Provided, that the said forfeiture shall not be incurred, if it shall be made appear to the satisfaction of the collector and naval officer of the district where the same shall happen, if there be a naval officer, and if there be no naval officer, to the satisfaction of the Collector or of the Court in which a prosecution for the forfeiture shall be had, that such difference arose from accident or mistake, and not from an intention to defraud the revenue.

These goods being claimed by Hugh K. Toler, of the City of New-York, merchant, were condemned by the District Court of the United States, for the Southern District of New-York, which sentence being reversed by the Circuit Court for that district, an appeal from the last sentence has been taken to this Court.

Before we examine the facts of the case, or whether they establish a fraud, without wbich the

prosecution under this section cannot be sustained, it will be necessary to dispose of a question of law, which has been made by the counsel for the claimant.

It is conceded on all hands, that on the 3d of November, 1810, the six packages which are libelled

1821.

United States

v.

were entered at the custom-house by Thomas Ash, on behalf of the claimant, and that the entry covered only a part of the goods which the packages con

of Goods.

Six Packages tained. That two days after, Toler himself completed the entry of the residue of the goods which were in these packages, and which had not been previously entered by Ash. Several days after, the packages were opened and examined by the collector, in presence of two merchants, and their contents were found not to differ, but to agree with the two entries taken together; but to differ very materially from the first entry made by Ash ; upon which the collector made a seizure of them. On these facts, about which there is no dispute, it is denied that the collector had any right to seize, inasmuch as, when the inspection took place, there was no difference between the goods found in the packages, and those mentioned in the invoices. It is said, that the collector, if he suspected a fraud, ought to have made a seizure before the second entry, in which case the difference which would have existed between the goods on which a duty was secured, and those in the packages, would bave justified such an act, but that by waiting until a second entry was made, the fraud, if any committed, was purged. In support of this position, it is said, that the collection law provides for a post entry of this kind, and that the very oath which is taken when an entry is made, imposes on the party who makes it, the duty, in case he shall afterwards discover any other goods in a package than those first entered by him, of immediately informing the collector, and making a further entry thereof.

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