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 the entries, the officer making such seizure and examination, 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 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 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 reside 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.
This provision, and the form of the oath, suppose no more than that a deficient or defective entry may be made innocently, and under a mistake, without any certain knowledge at the time of the contents of the packages entered. For, if the party making an entry, knows at the time of other goods, such other goods cannot be entered afterwards, and the oath usual on such occasions cannot be taken, without admitting that a perjury had been committed at the time of the first entry. The Court is, therefore, of opinion, that, although the seizure was not made until after the second entry, the collector had a right to seize for any variance between the contents of the packages, and the first entry, and that such seizure will be valid, and must be followed by sentence of condemnation, unless it shall turn out that such difference proceeded from accident or mistake, and not from an intention to defraud the revenue. Whether the case of the claimant be entitled to this favourable interpretation, the Court will now proceed to inquire.