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recognisance may not have been taken in the terms prescribed by that act, the said neglect shall not be judged a hindrance or bar to the prosecution of said appeal, but the same shall be prosecuted in and such bail shall be liable at the termination of the appeal according to the true intent and meaning of his recognisance.

Sect. XXIV. And be it further enacted by the authority aforesaid, That the fees to be allowed to constables or other persons to carry the provisions of this act into operation shall be the same as the fees allowed by law to constables for similar services, and the like penalty inflicted for neglect of duty.

Sect. XXV. And be it further enacted by the authority aforesaid, That the arbitrators respectively shall receive the sum of one dollar for each and every day necessarily spent by them in the investigation of any cause to them submitted under the provisions of this act, but they shall receive no daily pay or other compensation, unless they make their report and transmit the same to the prothonotary within seven days after they shall have agreed upon the same.

Sect. XXVI. And be it further enacted by the authority aforesaid, That in case any one or more arbitrator or arbitrators chosen and notified as aforesaid shall neglect or refuse to attend and take upon him or themselves the duties of their appointment, each of them so offending shall for every such offence forfeit and pay the sum of two dollars, to be recovered by either party before an alderman or a justice of the peace, in the same manner as debts of equal amount are by law recoverable, unless he or they can satisfy such alderman or justice that his or their absence was occasioned by sickness or some other unavoidable cause.

Sect. XXVII. And be it further enacted by the authority aforesaid, That the prothonotaries are hereby authorised and empowered to administer the oaths or affirmations required by this act to prove the service of notices and obtain appeals.

Sect. XXVIII. And be it further enacted by the authority aforesaid, That the act to regulate arbitrations and proceedings in courts of justice, passed the twenty-first day of March one thousand eight hundred and six, and the act supplementary thereto, passed the thirteenth day of April one thousand eight hundred and seven, and a further supplement thereto passed the twenty-fourth of March one thousand eight hundred and eight, shall be, and the same are hereby rendered perpetual, any thing in said acts to the contrary notwithstanding.

Sect. XXIX. And be it further enacted by the authority aforesaid, That after this act shall come into operation, so much of any law or laws as is or are hereby altered or supplied, be, and the same is hereby repealed.

Speaker of the house of representatives.


Speaker of the Senate. APPROVED, the nineteenth day of March one thousand eight hundred and ten.



Office of the Secretary of the Commonwealth,

Lancaster, March 29, 1810. I DO CERTIFY, to all whom it may concern, that the foregoing is a true copy of the original law remaining on file in the said office. Witness my hand the day and year aforesaid.

JAMES TRIMBLE, Deputy Secretary.

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[DUTIES. FORFEITURE. The proviso in the fifty-seventh section

of the “ act to regulate the duties and tonnage,” 4 L. U. S. 374, does not protect from forfeiture goods which are found cone cealed on board, after the master has declared that the whole cargo is discharged.]

PETERS, District Judge.
THIS was an action of debt against the master of the

schooner Two Brothers, to recover a penalty of five hundred dollars under the 57th section of the impost law, the goods on board not agreeing with the report or manifest delivered by the defendant at the customhouse, inasmuch as twenty-five bags of coffee, not reported, were found by the inspectors concealed in the vessel, some days after the master had declared that the whole cargo was discharged.

The disagreement was clearly proved at the trial, under such circumstances as excluded every idea that it arose from accident or mistake. But Mr. Condy, the counsel for the defendant, contended, that as the goods had never been landed until they were seized and sent to the customhouse by the inspectors, the penalty by virtue of the proviso to the section of the act of congress on which the suit was founded, could not be inflicted. After a general answer from Mr. Dallas, the jury gave a verdict for the United States, subject to the opinion of the court on the point of law. The case was then argued before the judge, who delivered the following opinion:

Peters, J. The point to be determined by the court arises on the meaning and construction of the fifty-seventh section of the “ act to regulate the duties on imposts and tonnage."

Twenty-five bags of coffee were found hidden on board the schooner Two Brothers, whereof the defendant was master, not included in the manifest delivered at the customhouse, after seven bags had been before discovered under similar circumstances; for which latter a post-entry had been permitted, a caution given to the master that he must enter all on board, and asseverations by him that there were no others in the vessel. The whole circumstances were attended with strong suspicious appearances. But it is unnecessary to detail them, as the jury have passed upon the facts, and satisfied themselves, and I must add, to the satisfaction of the court, so far as it has any opinion to give in that part of the case. I shall, however, detach my mind from such considerations, so, nevertheless, as to regard what is necessary to developing the intention of the act, and its spirit and meaning. For, though true it is that penal statutes are to be construed strictly, yet equally true is it, that “ such construction ought to be put upon a statute as does not suffer it to be eluded.” 6 Bac. Ab. 391. and authorities cited.

The question here is as to the twenty-five bags of coffee “ not agreeing with the report or manifest delivered by the master" to the collector; that is, they were not contained in it, but concealed on board, and not delivered till the vessel was thought to be unladen, and the inspecting officer had left her. The penalty of five hundred dollars is indisputably incurred, unless saved by the proviso in the fifty-seventh section.

It is insisted on by the counsel for the defendant, that the fact of their being so found on board (no matter what was the intent of the master) is sufficient to acquit him, under one of the provisoes or savings in the 57th section, from being amenable to the penalty imposed thereby. No construction is to be given to this (as it is contended) out of the very words; under the rule of interpretation of penal statutes. Now these words are, “ Provided it shall be made appear to the satisfaction of the collector, &c., or, in case of trial for the said penal. ty, to the satisfaction of the court, that no part whatever of the goods, wares or merchandize of such ship or vessel has been unVOL. III.


shipped, landed or unladen, since it was taken on board, except as shall have been specified in the said report or manifest, and pursuant to permits as aforesaid.” It appears to me then, that the very words of this proviso, in the strict construction contended for, do not relate merely, and cannot reasonably, or on any rule of construction be confined, to the goods which shall happen to be found on board. The law certainly could not be so construed, with any rational attention to the intent of the legislature. And it is also a role in the interpretation of all statutes, (penal as well as others) that they shall be so construed as to effectuate the intention of the legislature. It requires no further or other proof to satisfy the collector or court that these goods were not at the time of discovery

unshipped,&c. than that of their being actually on board. But proof is expressly required, when it is discovered that “the goods on board do not agree with the manifest” to satisfy the collector or court that not only these goods, but that " no part whatever of the goods, &c. of such ship or vessel, has been landed,” &c. clearly, in my opinion, embracing all other goods of the ship, and throwing (from the necessity of such suspicious cases) the proof on the party, that no goods, others as well as those discovered, had been landed, &c. If this construction is deemed strict, it is certainly warranted by the doctrine contended for as to penal statutes. But it appears to me not to be a rigid or forced construction. It is one perfectly in conformity with the rule before mentioned, to wit, that “ the construction shall be such as not to suffer the statute to be eluded." And nothing could open a wider field for frauds and evasions, than that the very fact which creates strong suspicions of other violations having been committed, should be established by the legislature as an excuse, not only for the one in which the party was detected, but as a protection against a penalty imposed to compel proof that there had been no smuggling of other parts of the cargo. This would seem like " a saving in an act contrary to the body of it,(1 Rep. 47. c.) which lord Coke declares to be void. It would be almost as extraordinary (I do not mean any personal allusions) as would be a law for punishing theft, but excusing

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