Argument for the lumber merchants.

are liable to buy smuggled goods subject to seizure. As simply buying these goods is made a sufficient act, the offence depends on the scienter.

This suit is not upon a partnership liability. The defendauts could not have pleaded the nonjoinder of Chalmers in abatement. Each defendant was liable for his own act, and, although partners, the verdict might be against one and in favor of the other. If the ruling had been that the fact that Leman Stockwell was agent and partner should be weighed by the jury as a circumstance tending to show knowledge on the part of the defendants, no error could have been assigned.

2. The instructions do not make a proper distinction as to the character of the acts. If an agent or partner, in the course of his employment, wilfully does an act in violation of law, the principal or partner is not liable, except upon evidence that he authorized or adopted it. In the absence of proof as to actual authorization, or in determining whether he impliedly authorized it, the nature of the employment and of the act must be compared and the instructions should refer to the consideration whether the illegal act was one the doing of which may be fairly held to have been authorized from the nature of the employment, &c., &c. An absolute instruction, as this substantially was, that from the fact of an authority to buy and ship goods, an illegal act of shipping goods by a fraudulent invoice or description was in law the act of the partnership, and not open to rebuttal, would be incorrect.*

3. Such ruling would deprive the defendants of the benefit of the presumption that no one does an act prohibited by law. This presumption applies, of course, to the authorizing of an illegal act by another. It is, doubtless, a rebuttable presumption and cannot overweigh facts and is to be balanced with other presumptions; but the defendants should have the benefit of it in the scales.†

McManus v. Crickett, 1 East, 106.

† Bennett v. Clough, 1 Barnewall & Alderson, 461; Sissons v. Dixon, 5 Barnewall & Cresswell, 758; S. C., 8 Dowling & Ryland, 526, 9; Wilson v

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A-giment for the amber merana

4. The Tarmorious were errocene in that they required the joy to flat le defendants knew of the i. egal im portations from the mere fact of a knowledge of their part per lo a foreign ensitry, without submitting to the jury the queationetter the defen lants authorized the act of their agent and partner, or did in fact know of it.

5. In all cases where knowledge is required by statute, the question of knowledge is left to the jury, with instruc tions as to presumptions and primâ farie proof, &c., if required; bat, ou balancing the presumptions arising on each side, and the facts proved, the jury must be satisfied of the knowledge. The cases of Regina v. Denn, Graham v. Pocock,t and bam.erous others, show that such is always the course taken whenever a principal or partner is charged for a penalty, or even to make good a loss, by reason of an act of an agent or partner, if knowledge on his part is an ingredient. So in civil suits where knowledge is required.§

6. Assuming the instructions to state the law correctly, that a principal or partnership may be liable for a tort of an agent or copartner, done without their knowledge and authority, in suits brought to recover compensation or indemnification for a loss suffered by a third person through the mi-conduct of an agent or partner-they were erroueous in assuming that the same rule applies in the case of a suit to recover a penalty.

7. It has been said by text-writers, in general terms, that a principal may be held responsible for the illegal or tortious act of his agent, even penally and criminally. But in all cases, when the principal or partner has not authorized the

Rankin, 6 Best & Smith, 208; Peachey v. Rowland, 13 C. B. 182; Lyons v. Martin & Adolphus & Ellis, 512; Freeman v. Rosher, 13 Q. B. 780: Earle v. Rowero8 East, 126, 183.

* 12 Meeson & Welsby, 39. + Law Reports, 8 Privy Council, 845.

↑ Cooper Slade, 6 House of Lords Cases, 749; Regina v. Bradley, 10 Modern, 155; Rex v. Dixon, 8 Maule & Selwyn, 11; Rex v. Manning, 2 Com. R. 616; Attorney-General v. Riddle, 2 Crompton & Jervis, 493; AttorneyGeneral v. Siddon, 1 1d. 220; United States v. Halberstadt, Gilpin, 262.

Lewis v. Read, 13 Meeson & Welsby, 834; Castle v. Bullard, 23 Howard, 172.

Opinion of the court.

act or adopted it with knowledge, he is held liable only to make good the loss, or to the cxtent of the consideration and benefit received.*

III. The act of 1823 cannot be construed to apply to the illegal importers themselves. It applies only to an offence committed after the goods shall have been the subject of a prior offence by which they shall have been "illegally imported," and have become "liable to seizure." There are, then, two acts: first, such an act of illegal importation as shall have made the goods liable to seizure; second, after the liability to seizure has attached, an act of receiving, concealing, or buying the goods, with knowledge of the illegal importation and liability to seizure. There are numerous and sufficient laws punishing by fine, penalty, or forfeiture, all forms of illegal importation. The act of 1823 does not assume to provide for the original offender, but only for the person who, with knowledge of that offence, shall aid in keeping the goods out of the reach of the government. In order to cover all the methods by which this may be done, the words "receive, conceal, or buy," are used. These words will cover every act of an accessory after the fact.

IV. The act of 1866 inflicts a penalty for the same offence set forth in the act of 1823. This penalty may be less than that of the act of 1823, as it may be a fine of only $50. It must therefore be held to supersede and repeal the penalty under the former act.

Mr. B. H. Bristow, Solicitor-General, and Mr. C. H. Hill, Assistant Attorney-General, contra.

Mr. Justice STRONG delivered the opinion of the court. The first error assigned is that a civil action of debt will not lie, at the suit of the United States, to recover the for

* Smith's Leading Cases (Hare & Wallace), 329, 330; United States v. Halberstadt, Gilpin, 262; Turner v. N. B. R. R., 34 California, 594; Hutchins v. Turner, 8 Humphreys, 415; Morley v. Gaisford, 2 H. Blackstone, 442; McManus v. Crickett, 1 Enst, 106; Gordon v. Rolt, 4 Exchequer, 865; Sharrod v. L. & N. W. R. R. 4 Exchequer, 580; Taylor v. Green, 8 Carrington & Payne, 316.

Opinion of the court.

feitures or penalties incurred under this act of Congress, and that the court below erred in holding that such an action might be maintained. It is not contended that an action of debt will not lie to recover duties, if the defendant be the owner or importer of the goods imported, for it is conceded that by the act of importing an obligation to pay the duties is incurred. The obligation springs out of the statutes which impose duties. Nor is it doubted that when a statute gives to a private person a right to recover a penalty for a violation of law he may maintain an action of debt, but it is insisted that when the government proceeds for a penalty based on an offence against law, it must be by indictment or by information. No authority has been adduced in support of this position, and it is believed that none exists. It cannot be that whether an action of debt is maintainable or not depends upon the question who is the plaintiff. Debt lies whenever a sum certain is due to the plaintiff, or a sum which can readily be reduced to a certainty-a sum requir ing no future valuation to settle its amount. It is not necessarily founded upon contract. It is immaterial in what manner the obligation was incurred, or by what it is evidenced, if the sum owing is capable of being definitely ascertained. The act of 1823 fixes the amount of the liability at double the value of the goods received, concealed, or purchased, and the only party injured by the illegal acts, which subject the perpetrators to the liability, is the United States. It would seem, therefore, that whether the liability incurred is to be regarded as a penalty, or as liquidated damages for an injury done to the United States, it is a debt, and as such it must be recoverable in a civil action.

But all doubts respecting the matter are set at rest by the fourth section of the act, which enacted that all penalties aud forfeitures incurred by force thereof shall be sued for, recovered, distributed, and accounted for in the manner prescribed by the act of March 2d, 1799, entitled "An act to regulate the collection of duties on imports and tonnage." By referring to the 89th section of that act it will be seen. that it directs all penalties, accruing by any breach of the

Opinion of the court.

act, to be sued for and recovered, with costs of suit, in the name of the United States of America, in any court competent to try the same; and the collector, within whose district a forfeiture shall have been incurred, is enjoined to cause suits for the same to be commenced without delay. This manifestly contemplates civil actions, as does the proviso to the same section, which declares that no action or prosecution shall be maintained in any case under the act, unless the same shall have been commenced within three years after the penalty or forfeiture was incurred. Accordingly, it has frequently been ruled that debt will lie, at the suit of the United States, to recover the penalties and forfeitures imposed by statutes. It is true that the statute of 1823 imposes the forfeiture and liability to pay double the value of the goods received, concealed, or purchased, with knowledge that they had been illegally imported, "on conviction. thereof." It may be, therefore, that an indictment or information might be sustained. But the question now is, whether a civil action can be brought, and, in view of the provision that all penalties and forfeitures incurred by force of the act shall "be sued for and recovered," as prescribed by the act of 1799, we are of opinion that debt is maintainable. The expression "sued for and recovered" is primarily applicable to civil actions, and not to those of a criminal nature.

The second assignment of error is that the jury were instructed the knowledge of the defendants required by the statute in order to render them liable, was conclusively presumed from the knowledge of their agent, their partner in the transaction. This is hardly a fair exhibition of what the court did charge. The instruction given to the jury, and all that is assigned for error, was that "if Leman Stockwell, as a member of the firm, engaged in the shingle business at the time of the importation and reception of the shingles at

* United States v. Colt, Peters's Circuit Court, 145; Jacob v. United States, 1 Brockenbrough, 520; United States v. Bougher, 6 McLean, 277; Walsh v. United States, 3 Woodbury & Minot, 342; United States v. Lyman, 1 Mason, 482: United States v. Allen, 4 Day, 474.