judicial condemnation, but it then reverts to the commission of the offense, and avoids all intermediate sales between its commission and condemnation. The forfeiture must be deemed to attach at the moment the offense is committed, so as to avoid all intermediate sales.1 This is the settled doctrine in England and America, where a forfeiture is declared for an offense against revenue laws. The case last cited asserts a modification of this doctrine in its application to the circumstances of the offense described in this section. The government has the right to elect whether it will proceed for the value of the goods, or the goods; until that election is made the forfeiture does not take place, and the title of a bona fide purchaser is good against the United States. If the government elects to proceed for the penalty, the importer may sell the goods in the ordinary course of trade, and the title of the purchaser is unaffected by the fact that an offense has been committed that might have subjected them to forfeiture. If it elect to proceed for the forfeiture, that election is shown by the seizure made of the goods for the violation of the law. Before this seizure no one can tell whether the government will take the one course or the other, and innocent purchasers of the goods might lose their title to them at any time within the period limited for the prosecution of such offenses. The forfeiture does not take place until the election of the government to proceed for a forfeiture; when it has so elected and made a seizure, innocent persons cannot then be injured, for the goods are then in the possession of the government. Before that time a purchaser in good faith gets a good title against the government's claim by reason of the forfeiture. An auctioneer who makes advances on goods consigned, without knowledge of the fraud, and before the election of the government, is in the position of a bona fide purchaser, and may be paid out of the proceeds of sale in the registry of the court.3 Section 2901.-The offense here is having articles in a package not designated in the invoice. It subjects the whole package to forfeiture, if done with a fraudulent intent, but if the appraisers who make the examination, are of opinion that the omission was not with such intent, the importer may make a post entry of the omitted articles and pay the duty on them. The original of this act seems to be § 4 of the act of 1830, and is for an entirely distinct offense from that United States v. 1960 Bags of Coffee, 8 Cranch, 398; United States v. Brigantine Mars, 8 Cranch, 417; Gelston v. Hoyt, 3 Wheat. 311; United States v. Grundy, 3 Cranch, 337; Caldwell v. United States, 8 How. 366. 2 United States v. Sundry Boxes of Havana Sugar, 2 Bond, 342. 3 United States v. 78 Cases of Books, 2 Bond, 271. of undervaluation in § 66 of the act of 1799. In an information under this section, it is not necessary to aver that the examination was made in the mode prescribed in the statute. It is only necessary to state the time and place, and such circumstances that a conviction or acquittal would be a bar against another information." § 163. False Entry-Issuing False Invoice-Smuggling— Unloading without Permit.—If the entry of the goods is made by means of any false paper, or the attempt is made to make such entry, whether the paper be the invoice, or certificate of a consul, vice-consul or commercial agent, the merchandise is subject to forfeiture. invoice which does not contain a true statement of all the particulars required by statute, is a false paper. An entry made by any false or fraudulent appliance or practice whatever, forfeits the merchandise.3 This section is much broader than it was originally, as to the forfeiture. At first it was only aimed at invoices which were not true but manufactured for the occasion. Now it includes an entry by any false paper, or by any fraudulent practice or appliance, if the owner, assignee, or agent has knowledge of the fraud. What evidence may be used in support of this charge has been noticed heretofore under the head of market value. In construing the act of 1863, which is precisely similar to the section in the Revised Statutes, it was said that the entry includes the entire transaction by which the importer obtains the entrance of his goods into the body of the merchandise of the United States, including the entry for consumption, the entry for warehousing, and the entry for withdrawal from the warehouse. Where the importer in making his written entry with the collector, stated the weight of sugar in peculs, and under it the weight in pounds, it was held that such statement to be true, must contain the correct number of pounds corresponding to the given number of peculs, according to the usage at the custom house; but if it did not, then if the statement was so made with intent to procure the entry of the sugar on payment of a smaller sum than ought to be paid, it was made with guilty knowledge. In a prosecution under this section, the invoice had been lost, but papers purporting to be such had been 338. 2 1 Clifton v. United States, 4 How. 242. Buckley v. United States, 1 How. 251; United States v. Package of Lace, Gilpin, 3 R. S. U. S. § 2864. 4 United States v. 67 Packages of Dry Goods, 17 How. 85, 92, 93. 52 Brightley's Dig. p. 256, § 105; Cliquot's Champagne, 3 Wall. 114. Ante, pp. 519 et seq. United States ». Baker, 5 Ben. 25; 3109 Cases of Champagne, 1 Ben. 241. in the office of the district attorney, and the appeal from the appraisement, and the re-appraisement by general appraisers and merchant appraisers were found. There can be no re-appraisement without entry, and the jury were instructed that they could presume an entry from these facts.1 The forfeiture takes place, although no higher duty could have accrued if the entry had been truly made. The penalty is attached to the false entry, not to the effect the entry may have upon the revenue.2 But while this may be true, the government must bring the guilty knowledge home to the parties charged with the fraud, as a basis of forfeiture. Where the fraud consists in entering sugars at one grade, which are chargeable at another, it is not enough to show that the entry is erroneous. The fraudulent intent must be fairly inferrible from the facts proved, and not rest on mere suspicion. The entry must be made by means of the false paper. To make up a false invoice at the place of exportation, with intent to defraud the revenue, is no offense, unless followed up by an actual attempt to use such false paper for the purpose of entry. Congress might have punished the making of such papers, but it has not; it has only punished the use of such papers for the purpose of passing the merchandise through the custom house.* The view has been expressed that the statute against fraudulent undervaluation does not apply to the case of a manufacturer or producer, who does not obtain his goods by purchase. But the language. of the section now under consideration, which imposes a forfeiture for false entry, would include the case of a manufacturer or producer, making entry by means of an invoice stating the value of the goods. below the market value at the place of exportation. If the importer knows that the invoice does not express the actual market value, the goods are subject to forfeiture. It is true that this section would also include the case of a purchaser, and it may be that under the rule heretofore noticed as to the construction of revenue laws, both of these statutes are in full force, and the government may proceed under either of them in the case of a purchaser. In such case, whether the proceeding be under § 2839 or under 2864, a purchaser in due course of trade, before the government has 2 128 Cases of Champagne, 2 Ben. 63. Bollinger's Champagne, 3 Wall. 560. It is somewhat in conflict with 5 Ben, 25. 4 United States v. 28 Packages of Pins, Gilpin, 306; United States v. Barnes, 6 Ben. 183; United States v. Bettilini, Woods, 654. 5 1209 Quarter Casks of Wine, 2 Ben. 249. See also United States v. 26 Cases of . Rubber Boots, 1 Cliff. 580. elected to proceed for the forfeiture under either section, will obtain A consignee who has made a title valid against the United States. advances is such a bona fide purchaser.1 It will be noticed that the act of March 3, 1863, in reference to false entry, denounces the forfeiture in the alternative, either the goods are forfeited or their value, while § 2164 denounces the forfeiture directly and absolutely against the merchandise only, and without alternative. There being no election to be made, in a proceeding to forfeit the goods of one not a purchaser under this section, the rights of all purchasers, even in good faith, from the importer, or whose title is traced through the importer, will be destroyed. The forfeiture reverts to the period of the commission of the offense, and cuts off all other rights. The forfeiture is now confined to the particular case or package as to which the fraud is attempted, by means of the false invoice, or other fraudulent document. Goods seized under this act may be released by the collector on bond and payment of duties, or proper security given therefor.3 Section 2865.-This section is directed against the person who makes the false entry, or aids in making. It makes the offense a misdemeanor, punishable by fine and imprisonment, or both, at the discretion of the court. It is confined to the invoice, but it punishes not only the passing or attempting to pass, a false, forged or fraudulent invoice through the custom house, but it also punishes the offense of making out such invoice. All who aid or abet in the making or passing of such invoice are punished in the same manner as the principals. The original of this act, like the preceding section, was the act of 1842, $19.4 Smuggling. By this term is generally understood the clandestine introduction of foreign merchandise into the United States, without the payment of duties. It was first punished by the act of 1842, § 19, where it was included with the offense just noticed in § 2865.5 It is now found in § 3082 of the Revised Statutes, and in this form it appeared for the first time in the act of July 18, 1866.6 This section embraces two distinct characters of offenses. One is the introduction of merchandise in violation of law, and the other is the reception or concealment of such goods after importation, with a knowledge of 'United States v. 53 Boxes of Havana Sugar, 2 Bond, 346. 218 Stat. U. S. p. 188, § 12. 4 United States v. 67 Packages, 17 How. 85. 3 18 Stat. U. S. p. 188, § 13. their unlawful introduction into the country. The latter offense was formerly punished by a forfeiture of the goods at one time, and at another by forfeiture of the goods and pecuniary penalties on the person engaged in the concealment.1 The punishment now, under § 3082, is a forfeiture of the merchandise, and the offender is subject to a fine of not less than $50 nor more than $5,000, and imprisonment not exceeding two years, or both. The forfeiture of the merchandise is absolute, the only alternative relates to punishment as between fine and imprisonment. If this section is taken literally, it includes every importation which is not made in strict accordance with the revenue laws, but it is not supposed that by the expression contrary to law, it is meant to include those violations of the revenue laws for which express provision has been made in other sections, such as false entry, undervaluation and others. A code of laws must be read together, and a specific punishment having been provided for the offenses named, they would not be properly included under these general terms. Nor does it apply to a mere importation without the payment of duties. It must be accompanied by concealment, an intent to defraud the revenue, or some similar circumstance. The indictment or information under this section, must allege the facts relied on as constituting the importation an offense, or state the illegality to be proved, such for instance as that distilled spirits are in casks of less than thirty gallons.2 A passenger from England to Boston, had several packages of jewelry to be entered in bond at Boston for Montreal, to be used in starting in business the son of a jeweler of Liverpool, and these goods were on the manifest, but he also had in his possession twenty-six diamonds that he took on board when it was too late to put them on the manifest. He asked a number of passengers in the saloon, in an open manner, what course he should pursue, and then put them in a parcel, directed it to the agent of the Liverpool jeweler in Boston, and gave the parcel to his son and directed him to have it entered on the manifest before the arrival of the ship. It was about to be entered by the purser when the revenue officers came aboard and made the seizure. It was held that this was not a concealment in the meaning of § 68 of the act of 1799.3 1 Act of 1799, §§ 68, 69; Gordon's Dig. Rev. Laws, p. 95; Act of 1823, § 2; S U. S. Stat. p. 781. United States v. Thomas, 2 Abb. C. C. 114; United States v. Nine Trunks and One Bag, 22 Int. Rev. Rec. 317. 3 United States v. 26 Diamond Rings, 1 Abb. C. C. 294. |