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cause it is a debt of record. But a debt of record, in the sense of the common law, is a debt or contract created of record; such as a statute staple, or statute merchant, and not one whose previous existence is only admitted of record. The effect of recording 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.

1821.

Spring

V.

South Carolina Ins. Company.

(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 15th.. 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.

United States

v.

Six Packages of Goods.

been lodged by the appellants with the clerk of this Court, within the first six days of the term, according to the rule.

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. SIX 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 post entry of the residue of the goods; and the packages being opened several days afterwards and examined by the collector in the presence of two merchants, and their contents found to agree with the two entries taken together, but to differ materially from the 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.

1821.

United States

V.

Six Packages of Goods.

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 14th. the Court.

This is a libel under the 67th section of the collec

tion 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 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

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1821.

United States

V.

Six Packages

of Goods.

the entries, the officer making such seizure and exa-
mination, shall cause the same to be repacked, and
delivered to the owner or claimant forthwith; and
the expense of such examination shall be paid by the
said collector or other officer, and allowed in the set-
tlement 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 merchan-
dize 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 satisfac-
tion of the collector and naval officer of the district
where the same shall happen, if there be a naval of-
ficer, and if there be no naval officer, to the satisfac-
tion of the Collector or of the Court in which a pro-
secution for the forfeiture shall be had, that such dif-
ference 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 be-
ing 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 which 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

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 contained. 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 have 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.

1821.

United States

V.

Six Packages of Goods.

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