MA. IN. Co. cised his judgment in going the northern course, as being OF ALEXAN- the best and safest, the whole court would have held the DRIA insurer liable, as the vessel was captured before she came J. AND J. H. to the dividing point, between the course to the Cape and to Jamaica.

V.

TUCKER.

Another case, more direct and decisive, is Foster v. Wilmer, 2 Str. 1248, 9, where the ship was insured from. Carolina to Lisbon and to Bristol, and the captain took in salt to deliver at Falmouth, before going to Bristol, repugnant to the specification of the policy, yet being captured before arriving at the dividing point between Falmouth and Bristol, the insurer was held liable, which seems exactly the present case.

The mere taking in goods for another port, does not, of itself, make a deviation. It may, however, if it materially vary the risk, and be a circumstance designedly concealed and suppressed, excuse the underwriters. In the present case it does not appear, materially, to vary the risk, any more than in taking in stores to land at Cape Nicola Mole, in the case of Middlewood and Blakes, varied the risk, which was not suggested by court or counsel, that it did; or the taking in salt to land at Falmouth, in the case of Foster and Wilmer. It did not delay the voyage in the present case; the vessel sailed with convoy as soon as it was ready, and was afterwards captured in the proper course, before deviating.

The award may be laid out of the case, for more reasons than one. I think it void for uncertainty.

As to the loss, whether total or average, the jury, who had the whole evidence before them, have, in effect, found a total loss, and the voyage broken up. It is not certified by the court, that the bill of exceptions contains the whole evidence; and as strong circumstances (I think conclusive ones) are stated, that show the voyage could not be safely pursued, or could not be pursued at all, in consequence of the loss of register and loss of hands by the capture, either of which, it does not appear, could be supplied, I think we are not warranted to overrule the verdict, or reverse the judgment.

Judgment affirmed.

THE UNITED STATES v. HETH.

THE UNITED
STATES.

V.

НЕТН.

THIS was a case certified from the circuit court of The collector the fifth circuit, holden in the district of Virginia, where of the district a question arose upon which the opinions of the judges were opposed.

The question was, whether the defendant, as collector of the customs for the district of Petersburgh, was restricted to a commission of two and a half per cent on any, or all of the monies collected and received by him after the 30th of June, 1800, on account of bonds previously taken for duties arising on goods, wares, and merchandise, imported into the United States.

This question arose upon the 2d section of the act of congress, entitled "an act, supplementary to an act, entitled an act, to establish the compensation of the officers employed in the collection of the duties on import and tonnage"-passed on the 10th of May, 1800, vol. 5. p. 173. The words of which are, "that in lieu of the commissions heretofore allowed by law, there shall, from and after the thirtieth day of June next, be allowed to the collectors for the districts of Alexandria, Petersburgh, and Richmond, respectively, two and a half per centum on all monies which shall be collected and received by them,' for and on account of the duties arising on goods, wares, and merchandise, imported into the United States, and on the tonnage of ships and vessels."

Breckinridge, attorney general, in behalf of the United States, observed, that the words of the act appeared to him so plain that they could not be clucidated by argument. He understood the language of the act to be, that only two and a half per cent should be allowed on monies received after the 30th of June. Although the collector may have done the greater part of his duty by taking bonds for the duties, yet they were neither collected nor paid before that day. It cannot be deemed an unconstitutional act as being ex post fact, because the prohibition of the constitution extends to criminal cases only. 3 Dal. 386. Calder v. Bull.

of Petersburg

was not, by the act of the 10th of May, 1800, restricted to a

commission of two and a

half per cent on the monies by him collect

ed and receiv

ed after the

30th of June, 1800, on account of bonds previously taken for duties arising on ed into the Ugoods importnited States.

"HE UNITED STATES

V.

ПЕТН.

"Col. Heth. Although it is a sound rule of construction, that when the words of a statute have a plain, distinct, and reasonable meaning, no recurrence is to be had to intendment, inference, or implication, yet, when the words of a statute admit of two constructions, (as in the present case they evidently do, or they would not now be under discussion) it cannot be improper to have reference to similar laws, and to inquire how they have been construed.

The first section of the act of 14th Feb. 1795, vol. 3, c. 88, says, "that in lieu of the commissions heretofore by law established, there shall be allowed to the collectors of the duties on import and tonnage, on all monies by them respectively received on account of the duties aforesaid, arising on tonnage, and on goods, wares, and merchandise, imported after the last day of March next, to wit," "to the collector of Bermuda, Hundred," (which office was then holden by the defendant) "two per cent." This act raised his commission from one to two per cent; which two per cent he charged only on the duties that arose on importations made after the last day of March, 1795; and one per cent only on the money received on bonds, payable after that day for goods imported before.

The act of 3d March, 1797, vol. 3, ch. 63, raised the defendant's commissions from two to three per cent, in precisely the same language as that of the last act; and of course, it received from him the same construction, and in both instances that construction was acquiesced in by the treasury department.

The next act upon the subject, and that which next precedes the act in question, is that of 2d Murch, 1799, vol. 4, ch. 129, p. 447, entitled "an act to establish” (a word not used in the titles of the former acts) "the compensations of the officers," &c. the second section. of which runs thus: "that from and after the last day of March next, and in lieu of the fees and emoluments heretofore established, there shall be allowed and paid for the use of the collectors, naval officers, and surveyors, the fees following: that is to say," &c. &c. (to the collectors of sundry ports, not including the defendant)

per

"and to the collectors of all other districts, three cent on all monies by them respectively received on account of the duties arising on goods. &c. imported into the United States, and on the tonnage of ships and vessels," whereby the defendant's commissions were established at three per cent.

A difference of phraseology will be observed between this and the two former laws. This section says, “that from and after the last day of March next," certain commissions shall be "allowed and paid" on all monies received on account of duties arising on goods "imported into the United States," and not, as before, “ imported after the last day of March next." Yet this dif ference of phraseology made no difference at the treasury in the construction of this law, until very lately.

The next act is that upon which the present question arises; the second section of which says, "that in lieu of the commissions heretofore allowed by law, there shall, from and after the 30th day of June next, be allowed to the collectors, &c. two and a half per centum, on all monies which shall be collected and received by them, for and on account of the duties arising on goods, wares, and merchandise imported into the United States, and on the TONNAGE of ships and vessels."

There is no difference between the words of this act and those of the act of 1799, excepting that the present act uses the words "collected and received," and the act of 1799, uses the word "received" only. But the word "collected," is believed to be merely an accidental tautology, which cannot alter the meaning of the section.

Neither of the two last, like the former laws on the same subject, confines, by express words, the commissions to the monies received for duties arising on goods imported after a certain date; but the word after, is placed in a different part of the sentence; yet all these laws received the same construction at the treasury, for at least five months after this last act had passed; a construction, which, as the defendant still contends, was perfectly correct.

THE UNITED
STATES

V.

HETH.

THE UNITED
STATES

V.

HETH.

The collector can receive no higher or lower commission upon the monies "collected and received" upon the duties arising on the tonnage of a vessel, than upon the merchandise imported in such vessel.

The section of the law in question, confines the change of commissions to the money arising on goods imported after the 30th of June, and on the tonnage of vessels, as strongly as if the words "after the 30th of June,' had immediately followed the word "imported."

The participle, "arising," must refer to the time when the section is to take effect, i. e. " from and after the 30th of June next." The duties arise when the goods are landed, and when the bonds are taken.

To what time the words "arising" and "imported" relate, is not, perhaps, at first view, very obvious; but the date is found in the preceding part of the section.The only period mentioned throughout is "the 30th day of June."

The true reading of this section must be thus:"there shall be allowed on all monies to be received for duties arising on goods imported after the 30th of June next." To speak of duties "arising" after the 30th of June, 1800, on goods imported and landed before that day, wold be absurd; for the duties "arise" as soon as secured, though not received till a distant period.The word "imported," stands without any sign of time, and may be past, present, or future, with equal propriety, unless resort be had to inference, and to the context. The language, to have been precise, should have been either "which may have been imported," or "to be imported." The word, however, standing without the explanatory signs, must receive that construction which is most consonant to justice, reason, and common

sense.

By the 63d section of the collection law of 2d March, 1799, it is enacted, "that the duties imposed by law on the tonnage of any ship or vessel, shall be paid to the collector, at the time of making entry of such ship or vessel; and it shall not be lawful to grant any permit, or to