Johnson et al. vs. United States. true in respect to checks received ordinarily in the course of business by the collector, where an immediate demand and payment thereof is intended and expected by the parties. But suppose the collector should keep the check until the bank had failed, or the party should afterwards, by other checks, withdraw his funds from the bank, so that when presented, payment should be refused, would it be contended that the government were bound, or had made the check its own, by the improper act of its officer? I hold, clearly not. The 74th section of the collection act of 1799, (ch. 128,) declares, that all duties to be collected shall be payable in money of the United States, or in foreign gold or silver coins, at certain rates stated in the section; and even foreign coins are not receivable, which are not by law a tender, unless by a special proclamation of the President of the United States. This is a plain provision, which admits of no controversy. How can any collector, by any arrangement, not to say by any connivance with a public debtor, supercede it? If such debtor do concert an evasion of it with the collector, is it not a fraud upon the law? If so, a fortiori, a memorandum check would be no payment. Would there be any pretence to say that the collector had a right to receive any goods, or lands, or collateral securities in payment? Where are we to stop, if we do not stop at the plain terms of the act? But it is by no means clear, even by the local law, that taking a check in payment of an antecedent debt, is to be deemed a payment of the debt, unless it has been presented for payment and paid, or the creditor has made it his own by his conduct. The case of Dennie vs. Hart, (2 Pick. R. 204,) looks strongly the other way. And it is manifest that in our local law, varying in this respect from the general commercial law, a negotiable check or note is not deemed absolute payment; but it is open to be rebutted by any circumstances which establish that the parties did not so intend it. In the case now before us, it does not even appear that the debtors had any funds in the Lincoln Johnson et al. vs. United States. bank; the check was never presented or paid, and the drawers afterwards received it back without any payment. Under such circumstances, it would be difficult to maintain, before a jury, that the parties ever originally intended that it should be deemed an absolute payment, even if the case could be brought (as I think it cannot) within the reach of the local law. Upon the whole, looking at this case with reference to the points made, and so elaborately discussed at the argument, and at those only, I am of opinion that the judgment upon the demurrer ought to be, as it was in the Court below, in favour of the United States; and the judgment ought to be affirmed accordingly.6 UNITED STATES vs. JACOB SHACKFORD IN ERROR. To affect the master of a vessel with the penalty provided for his non-delivery of a temporary register, granted under the 3d Section of the Coasting Act of 1793, ch. 52, there must not only be an arrival at the port, to which the vessel belongs, but it must be an arrival there, not by accident, or from necessity, but intentionally, as one of the termini of the voyage. DEBT for the penalty of one hundred dollars, against the defendant, as master of the schooner Sarah, of Eastport, for not delivering up a temporary register, obtained in the district of New York, within ten days after the arrival of the vessel at Eastport, where she belonged, according to the provisions of the 3d sectior. of the coasting act of 1793, ch. 52. The case came before the District Court upon an agreed statement of facts, as follows: "In this case it is agreed, that the schooner Sarah, of which the defendant was master, belonged to Eastport, and was there Johnson et al. vs. United States. true in respect to checks received ordinaril siness by the collector, where an immedi thereof is intended and expected by MAY TERM, 1830. Johnson et eles. Laited States. er presented or paid, and the drawers without any payment. Cuder such gabel text in sealt, be deemed Scult to maintain, before a jury, the collector should keep the check certain rates stated receivable, whic proclamation/ took ge, having on board sailed under the same and did not deliver up her ector of Passamaquoddy within ence, the cause is submitted to the decision of plain provisiving the right of appeal, as from a judgment rencollector, a public evasior If sc W erdict." District Court pronounced a judgment in favour of the dewhich a writ of error was brought to the Circuit And now, at this term, the cause was argued by Shepley, upon pstrict Attorney, for the United States, and by Greenleaf, for the defendant. STORY J. The third section of the coasting act of 1793 (ch. 52) provides, that the collectors of the several districts may enroll and license any ship or vessel, that may be registered, upon such registry being given up, or register any ship or vessel that may be enrolled, upon such enrolment and license being given up. And when any ship or vessel shall be in any other district than the one to which she belongs, the collector of such district, &c. shall make the exchanges aforesaid. But in every such case, the collector to whom the register or enrolment and license may be given up, shall transmit the same to the register of the treasury; "and the register or enrolment and license granted in lieu thereof, shall, within ten days after the arrival of such ship or ves or paid, and the drawers vment. Under such before a jury, deemed 445 United States vs. Shackford in Error. district, to which she belongs, be delivered to the id district, and be by him cancelled. And if ommander shall neglect to deliver the said and license, within the time aforesaid, he dollars." cts is, whether in this case there was D n the district of Eastport, to which he act, so that the penalty of one curred by the neglect of the master to de porary register to the collector of the district e ten days prescribed by the act. The argument of the District Attorney is, that every coming into the district is an arrival, in the sense of the act, although it may not be in the course of the voyage on which the vessel is bound, nor within the original contemplation of the parties when it was undertaken. It goes then to this extent, although not so stated in terms, that if the vessel come in from necessity, or be driven in by stress of weather, or seek the port to avoid capture by an enemy, it falls within the reach of the act, as much as if it was a voluntary arrival, however short may be the stay, or fugitive the purpose of it. The argument on the other side is, that the arrival must be within the district as a port or place of destination on the business of the voyage, and so contemplated by the parties, as one of the termini, if not the sole terminus of it. It is doubtless true, that the term "arrival" is susceptible of either interpretation, according to the language of the context, and the objects of the legislature. It may be used in the most general sense, as importing a mere entry within the local limits of the district; or it may be restrained to such an entry as is purely voluntary, for objects connected with the voyage, and a part of the enterprise. Whether the one sense or the other is to be adopted, depends upon a just survey of the language, and the policy of the statute. There are many instances in our revenue laws, where the word is used in the more limited as well as in the larger sense. United States vs. Shackford in Error. duly enrolled and licensed; and thence she proceeded to New York, where she took a temporary register and sailed on a voyage to St. Johns, New Brunswick; landed her cargo there, and took a return cargo and passengers for New York. On her way to the latter place, she stopped at Eastport, in the American waters, and within the district of Passamaquoddy, and anchored off the town, and waited about two hours for the tide; during which period, she landed some passengers and their baggage, having permit from the custom-house for that purpese; took on board some other passengers and small stores, and sailed under the same temporary register to New York, and did not deliver up her temporary register to the Collector of Passamaquoddy within ten days. "Upon this evidence, the cause is submitted to the decision of the Judge, reserving the right of appeal, as from a judgment rendered on verdict." The District Court pronounced a judgment in favour of the defendant, upon which a writ of error was brought to the Circuit Court. And now, at this term, the cause was argued by Shepley, District Attorney, for the United States, and by Greenleaf, for the defendant. STORY J. The third section of the coasting act of 1793 (ch. 52) provides, that the collectors of the several districts may enroll and license any ship or vessel, that may be registered, upon such registry being given up, or register any ship or vessel that may be enrolled, upon such enrolment and license being given up. And when any ship or vessel shall be in any other district than the one to which she belongs, the collector of such district, &c. shall make the exchanges aforesaid. But in every such case, the collector to whom the register or enrolment and license may be given up, shall transmit the same to the register of the treasury;" and the register or enrolment and license granted in lieu thereof, shall, within ten days after the arrival of such ship or ves |