United States vs. Hunter. to receive payment; and, until it is exhausted, their right of priority to the extent of satisfaction is fixed. It is like the common case of administration. There, the expenses are first deducted, and the residue is what is distributable according to the priorities established by law. Decree accordingly. CIRCUIT COURT OF THE UNITED STATES. Spring Circuít. MAINE, MAY TERM, 1829, AT PORTLAND. BEFORE Hon. JOSEPH STORY, Associate Judge of the Supreme Court. UNITED STATES vs. AN OPEN BOAT, Bucknam, &c. Claimants. Under the act of 15th of March 1820, ch. 122, prohibiting commercial intercourse from the British colonies in British ships, British owned vessels are included in the prohibition, although not registered or navigated according to the British navigation and registry acts. But open boats, without decks, are not included in the prohibition. The forfeiture, under the act, attaches to the cargo on board at the time the vessel enters, or attempts to enter our ports; and not to any cargo subsequently taken on board, though on board at the time of the seizure. Where goods are seized, and claimed as forfeited as part of the cargo, the onus probandi is on the government to prove, that such goods were part of the cargo on board at the time of the offence. The claimant may file a special defence on that point, if he chooses; but it is also in issue on the general denial of the allegations of the libel. LIBEL of seizure against an open boat and her lading, seized in fact at Eastport on navigable waters for a violation of the laws of the United States, on the 4th of January 1828, by the collector of the district of Passamaquoddy. At the trial in the District Court, a decree of condemnation was pronounced against the boat and all her lading, except 7 barrels of flour, 2 barrels of United States vs. An Open Boat, Bucknam and Gunnison, claimants. pork, and 13 bags of meal, for default of any claim. The excepted goods were claimed by Bucknam and Gunnison of Eastport; and upon a subsequent hearing a decree of acquittal passed by consent in favour of the claimants; from which decree an appeal was taken in behalf of the United States to the Circuit Court. The cause, upon the appeal, was argued by Shepley (District Attorney) for the United States, and by Daveis for the claimants. The STORY J. delivered his opinion as follows:-The present libel contains two counts; the first is founded upon the revenue collection act of 1799, ch. 128, § 92, which declares, that "no goods &c. of foreign growth or manufacture, subject to the payment of duties, shall be brought into the United States from any foreign port or place, in any other manner than by sea, nor in any ship or vessel of less than thirty tons burthen," &c. with certain exceptions, which do not apply to the present case. count alleges, that sundry foreign goods &c. were imported from a foreign port in this boat, the same being less than thirty tons burthen, against the form of the statute, &c. This count has been abandoned for want of evidence to support it, and may therefore be put entirely out of the case. The second count is founded on the act of the 15th of March 1820, ch. 122, prohibiting commercial intercourse with the British colonies. That act declares, that "the ports of the United States shall be and remain closed against every vessel owned wholly or in part by a subjects or subject of his Britannic Majesty coming or arriving by sea from any port or place in the province of Lower Canada, or coming or arriving from any port or place in the province of New Brunswick, the province of Nova Scotia, &c. And And every such vessel so excluded from the ports of the United States, that shall enter or attempt to enter the same in violation of this act, shall, with her tackle, apparel, and furniture, together with the cargo on board such vessel, be forfeited to the United States." United States vs. An Open Boat, Bucknam and Gunnison, claimants. The second count alleges, that the boat is British owned, came and arrived by sea from some port or place in the province of New Brunswick, within the port of Lubec; and entered the same port, and was employed in trade between said foreign port or place and the United States, contrary to the form of the statute. The facts admitted to be true are, that the boat is an open boat, with a fore-cuddy, of six or seven tons burthen. She is owned by British subjects, and belongs to a place called La Tete, in the province of New Brunswick, and came from thence in ballast to Eastport, where she took on board a cargo of American growth and origin, for the purpose of carrying the same to the river Maguagadavie in the same Province. After her cargo was on board and before sailing, she was seized by the collector for an asserted violation of the laws of the United States. Before I proceed to the main question, it may be well to dispose of those, which have been discussed at the bar, as in some sort of a preliminary nature. The first question is, whether the goods now claimed are liable to forfeiture at all, it not being established by any direct proof in the cause, that they constituted any part of the cargo of the boat. This point was not made in the Court below, and now comes by surprize upon the government. Under such circumstances, if the cause turned upon it, I should have no difficulty in postponing a final decision until an opportunity was given to bring this matter of fact before the Court. The District Attorney supposes, that enough appears upon the record to raise a presumption, that these goods were part of the cargo of the boat, especially as the claim does not set up any such special defence. The claim is, indeed, in a very general form, and quite too general and imperfect to found an exact denial of the allegations of the libel, if legal nicety had been insisted upon in the earlier proceedings. It was, without doubt, competent for the claimants to have taken the present objection by a special answer, or exception, if they had chosen so to do. But if their claim and answer contain a general United States vs. An Open Boat, Bucknam and Gunnison, claimants. denial of all the matters in the libel, every fact alleged in the libel and necessary to maintain the asserted forfeiture, must be affirmatively established by the government; for the case does not fall within the 71st section of the revenue collection act of 1799, ch. 128. Now it is very clear, that upon the language of the act of 1820, no goods are forfeited, unless they are part of the cargo on board the vessel; and consequently that fact must be affirmatively established by the United States. I see no sufficient proof to this effect on the record; and there is some presumption against it; for the boat, on board of which these goods were laden, is said to have been given up by the collector; and the boat, to which the present libel attaches, has been condemned and sold under the process of the Court. So that (to say the least of it) there is sufficient doubt to call for some farther proof and explanation. 66 A more material question is, what is the true construction of the act of 1820, as to the cargo liable to condemnation. Is it the cargo on board at the time of committing the offence, that is to say, at the time of the illegal entry, or attempt to enter; or the cargo on board at the time of the seizure, however long afterwards that may be made? The latter construction is insisted on by the District Attorney; and the former is contended for on the other side. My opinion is, that the cargo intended by the act is the cargo on board at the time, when the vessel enters, or attempts to enter the port. The words are, every such vessel, &c. that shall enter or attempt to enter, &c. shall, with her tackle, &c. together with the cargo on board such vessel, be forfeited." The offence is committed, and the forfeiture is complete at the moment of the entry, or the attempt to enter. If she has no cargo then on board, none is subjected to forfeiture; for the words of the act do not look to any future events to impose a new forfeiture. The cargo affected with forfeiture is deemed in some sort a participator in the offence, and involved in the guilt of the vehicle. If the legislature had intended to subject every future cargo taken on board by the vessel to forfeiture, as |