1 U. S. District Court.-The United States v. Gates. of this country, it having had its origin in England in the necessity of the case, where the entire property of any one convicted of felony, was forfeited and confiscated, and the civil remedy of the individual lost. But the case at bar does not depend upon either of these positions-neither this nor the former suit was for damages sustained-the case at bar is more nearly analogous to the doctrine of merger as applied to a lesser offence, where the acts constituting it go to make up a greater. He cited the cases of robbery, assault with intent to rob, and assault and battery. In every robbery there is an assault with intent to rob, and usually an assault and battery-and one guilty of the first is literally guilty of the one or both of the others-and yet it will not be contended that in a case where all these concur, the offender having been punished for robbery is liable for an assault with intent to rob, or that having suffered for the latter he could properly be proceeded against for an assault and battery. The lesser would be merged in the greater offence, and having suffered for the latter he would not be liable for the former. On the other hand, if indicted for assault and battery, and on the trial the evidence should show death caused by the assault and battery, so that the accused was guilty of murder, the less would doubtless be merged in the greater offence, and on this appearing on the trial, the proceedings under the indictment would be dismissed. The two remedies in the case at bar are in behalf of the same plaintiffs-both are for the commonwealth. The offences complained of are against the rights of the same parties, and concur in the same act, and neither is for damages. The goods were landed without a permit, (the offence forbidden in the act of 1799,) and with intent to defraud the revenue of the United States, (the offence prohibited in the act of 1842.) In one suit he has been punished for the act with the intent -in this it is sought to punish (more mildly) for the act alone without the wrong intent, the mere landing independently of any intent to defraud the revenue. claim on defendant for the single act which forms the foundation of both their claims. This doctrine is analogous to that of satisfaction of a debt or liability by payment in a civil suit, a former conviction in criminal law. In this case the first suit was criminal in its form, but this is a civil action. The law in either case, being complied with, is satisfied. On either of the above grounds the plea is good, and this action cannot be maintained. BETTS, D. J.-The question raised by the demurrer in this case is substantially whether a person convicted and punished by fine and imprisonment for smuggling goods on shore in this port (thus landing them without a permit) is liable also to an action for $400 penalty for such landing. The act of March 2, 1799, § 50. provides that no goods brought in any vessel from any foreign place may be unladen within the United States, but between the rising and the setting of the sun, except by special license from the collector of the port and naval officer, where there is one, nor at any time without a permit from the collector and naval officer, if any, for such unlading, and if goods shall be unladen from any such vessel contrary to the directions aforesaid, the master and every other person who shall knowingly be concerned or aiding therein, &c., shall forfeit and pay each and severally the sum of $100 for each of fence; and shall be disabled from holding any office of trust or profit under the United States for a term of not exceeding seven years, and the collector shall advertise the names of such persons, &c. &c.; and all goods so unladen or delivered shall become forfeited and may be seized by any of the officers of the customs, and when of the value of $400, the vessel, tackle, and furniture shall be subject to like forfeiture. The United States sue for the above penalty, alleging the landing of the goods in question without a permit. The defendant, by plea thereto, avers that he has since such landing, &c., been indicted by the United States therefor in the Circuit Court of this district, under the act of 1842. II. On general principles there can be only and has been by said court, on his plea of one punishment for the same act-one satis- guilty to such indictment, sentenced to pay a faction for one debt. The United States fine of $2000 and be imprisoned 30 days in having enforced one remedy, their claim punishment of said offence; and that the senagainst defendant is satisfied-extinguished. tence in both particulars has been satisfied; He has fulfilled the law by bearing the sen- and the acts for which he was so convicted tence thereof. The demand of the United and indicted are the same acts mentioned in States having been paid, they have no further the declaration in this case, U. S. District Court.-The United States v. Gates. To this plea the United States demur, and the broad question is whether an offender so circumstanced is liable to be proceeded against under the provisions of the two sta tutes. On the argument the sufficiency of the plea to establish the fact that the transaction for which the two prosecutions were instituted was one and the same, was objected to; but I think it sufficiently certain to a common intent, and shall consider the case as if the plea stood clear of all exception in alleging the identity of the acts involved in the two punishments. By the act of August 30, 1842, § 19, it is enacted, "If any person shall knowingly and willingly, with intent to defraud the revenue of the United States, smuggle or clandestinely introduce into the United States any goods, wares, and merchandize subject to duty by law, and which should have been introduced without paying or accounting for the duty, &c. &c., every such person shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in any sum not exceeding $5000, or imprisoned for any term of time not exceeding two years, or both, at the discretion of the court." with by the provision of the 19th section of the act of 1842. But when both apply to identically the same state of facts, can both be enforced, or does the latter supersede the former and supply the whole law applicable to such particular cases? In the case of the United States, v. One Case of Hair Pencils, 1 Paine 405, 6, Judge Thompson discusses the doctrine of the repeal of one statute by force of the enactment of a subsequent one on the same subject matter. In most cases, he says, the question resolves itself into the inquiry, what was the intention of the legislature? Did it mean to repeal or take &way the former law, or was the new statute intended as merely cumulative? 6 Davies Ab. 594, S. 9. The courts, in examining the questions as they present themselves on this subject, have fixed upon various incidents as indicative of the legislative purpose, and rendered them probably legal presumptions, which are to be regarded as fixing the intent. 6 Dana 591, 6 Bac. Ab., Statute D. M. Dwarris on Statutes 674, 675; Pick. R. 373, 5 Mass. R. 380. So Judge Thompson adverts to some criIt is manifest upon the comparison of these teria decisive of the purpose of the legislature two provisions that the latter is not inconsist- to introduce a new law not cumulative to the ent in every respect with the former, nor is it former, but revoking and supplanting it, as so far applicable to a like state of facts as to when the latter act on the same subject matimport an intention in the legislature to re-ter introduces some new qualifications or peal or supersede the prior enactment, because modifications, or is affirmative in its character, the acts which are subject to the operation of 1 Paine 406, though it is well settled that the respective statutes are not identical in all subsequent statutes, which add cumulative particulars, and furthermore because the for- penalties merely, do not repeal former statutes. feiture of the goods and vessel may still be in-1 flicted. 1st. The offence under the act of 1799 is committed, though the goods landed be not subject to duty, but not where a permit is granted, although there may be deception or smuggling under it, nor unless the goods are unladen from some vessel. 2d. The offence, under the act of 1842, may be committed notwithstanding a permit for landing, but not for clandestinely landing goods which are not dutiable. The of fence is also complete by bringing in clandestinely by any other means than landing from vessels. These instances, independent of others which may be designated, show that the 50th section of the act of 1799, may still be in force and operation in relation to many particulars without being touched or interfered Com. 298, per Lord Mansfield. The act of 1799, § 50, prohibits the landing of goods, &c. under a penalty, and moreover denominates it an offence. Ordinarily mere statutory penalties are to be sued for and recovered by action of debt. 5 Dana 243, 260; Jacobs v. U. States, 1 Brockb. R. 521. But information will also lie, when no method is prescribed by the statute for recovery of the penalty, 2 Cranch, 336, Adams v. Wood, and it would seem that the party may, at the election of the govern ment, in place of a suit, be indicted and fined to the amount of the penalty, 1 Chitty, C. L. 162, unless the special mode of remedy is pointed out by the statute. Bac. Ab. Judict. E. 4 D. and E. 457, Rex v. Samsbury, Cro. Jac. 577, Hollingsworths's case. If the defendant in the case had been before indicted on the 50th section and fined, the U. S. District Court.-The United States v. Gates. amount of the penalty, and then this action to the one last enacted. This it is to be ob for the penalty was instituted, it can scarcely be questioned that the plea sets up a complete bar to such proceeding, the averment of facts showing that the one case in all its particulars is involved in the other. It is laid down by Baron Gilbert, that if the party hath once been fined in an action on the statute, such fine is a good bar to an indictment, because by the fine the end of the statute is satisfied. Bac. Ab. stat ute E. It appears thus to be clearly the law, when the proceedings are founded upon the same statutory penalty, that the government is restricted to a single exaction of the penalty, whether enforced by action or indictment. It is not perceived that any distinction in principle can be drawn between inflicting punishment for the same offence, by different modes of prosecution under an enactment, or by applying to the case enactments in separate statutes, all having relation to precisely the same subject matter. served was a civil action for a penalty, 1 Pick. 168, and the same rule obtains in all qui-tam actions, or those sounding in tort, 3 Wils. 308, and cases cited. The Supreme Court of Massachusetts repeat the doctrine with emphasis, in the case of indictment for an offence punishable by fine. There the forbidden act was prohibited by the first statute under penalty of $20, and the second prohibited the same act under the penalty of not more than $20, nor less than $10, and the court held that the prosecution must be under the subsequent act alone. 21 Pick. 373. It is of no moment whether or no in this case the provisions in the act of 1842 be held a technical repeal of that part of the 50th sec. of the act of 1799 applicable to the subject. The latter enactment controls the former, and supplies the only punishment that can be inflicted for the offence pointed out by it. 17 Mass. R. 243, Howe v. Starkweather. The facts declared upon as the foundation The principle upon which the plea autre for the penalty demanded by this action, then, fois aquit, or, autre fois convict, is founded, being the same for which the defendant has is that no man shall be placed in peril of legal already been indicted and punished, I hold penalties more than once upon the same accu- that the action cannot be maintained, and that sation, 1 Chitty, C. L. p. 452, 462; and this the plea is a good bar thereto, both because applies to misdemeanors as well as felonies, the United States having obtained judgment except that if the plea is found against the and inflicted punishment upon the defendant defendant in cases of felony, the judgment is for an offence, they are prohibited by general respondeat ouster, but in case of misdemean- principles of law from prosecuting him again or, is final. 1 Chitty C. L. p. 451, 461, 462. for acts constituting the same offence, or in The goverment will be restricted to one satis-other words which if proved would call for his faction for an offence, whether the punishment conviction of that offence, and because the be pecuniary or corporeal, unless the legisla- punishment provided by the 19th sec. of the act ture in explicit and indubitable language exact of 1842 is not cumulative and to be imposed a further one. in addition to that prescribed by the 50th sec. of the act of 1799, but is quoad hoc a substitution for, or repeal of the latter. It is true the court do not favor constructive repeals of statutes, and look for some marked inconsistency between the two, before one is held revoked by implication by the other, 9 Cowen 437; 5 Hill 221; Doran on Stats. 675. But when one act points out a particular punishment for an offence, and a subsequent act prescribes a different punishment, the latter is held to control the former, and supply the sole rule to be administered. 5 Pick. 168, Nichols v. Squires, &c.; 21 Pick. 373, Commonwealth v. Kimball; Rex v. Cator, 4 Burr 2026. In the first of these cases the court say when the legislature imposes a second penalty for an offence, either larger or smaller than the former one, the party cannot be allowed to sue for either at his option. He is confined Judgment is accordingly given for the defendant, and against the demurrant. "WHAT should my son do to get on in the law?" said a father to a learned judge. "Do, sir? let him spend his own fortune; let him marry, and spend his wife's, and then he has some chance." "Some men," said another, have got on by their talents, others by their connection, but the great majority by not having a shilling in the world!" And thus it is, the lawyer must be like a Dutch convict; if he does not pump he must drown-he mu t see no other resource. U. S. District Court.-Smith v. Treat. MAINE DISTRICT. Before the Honorable ASHER WARE, D. J. WILLIAM SMITH, libellant v. HIRAM TREAT. November 4th, 1845. ARREST AND IMPRISONMENT OF SEAMAN IN FOR- BY MASTER-WHEN JUSTIFIABLE. The arrest and imprisonment of à seaman in a foreign character. The causes for which a seaman may be discharged are ordinarily such as amount to a disqualification, and show him to be an unsafe and unfit man to have on board the vessel. up his account of lumber discharged, he heard a noise on deck, and came up to put a stop to it. He found it was made by Hadley, who was on deck, passing off lumber, to make up the raft, Smith, the libellant, being at work with him. He ordered Hadley to stop his noise, or go below. Hadley, who had been drinking pretty freely, but not so as to render him incapable of work, replied that he would not go below for him, nor for any other man. Tappan rejoined that if he continued his noise, he would put him below, and Hadley replied, that neither he, nor any one else, could put him below. Tappan then called to the second mate, who was on the raft, to come on deck, and assist in putting Hadley below, whose noise had then attracted the attention of persons near the vessel. Smith, who was at work with Hadley, and to whom nothing had been said, then interposed and said to the mate, "If you put one below, you must put all hands below." The difficulty, however, subsided without any act of violence, and the men returned to their work, and continued quiet for an hour, or an hour and a half, when Hadley again became noisy. It is not easy, from the varying accounts of the witnesses, to determine the precise facts which took place after this time, or the exact order in which those occurred, in which the accounts of all the witnesses agree. The noise appears to have commenced between Hadley and Smith, who were at work together; Tappan, the mate interposed to stop it, and an affray took place. Tappan knocked down Hadley with his fist; Smith interposed, gave a blow to Tappan and they clenched. While they were clenched, Hadley got up, and some of the witnesses say that he stood by and looked on, without taking a part. But Harriman, the second mate, who at this time came on deck, I, says, that both Smith and Hadley were WARE, D. J.—The libellant in this case upon the mate, and had got him down on a went and returned in the brig, and it is not barrel; that as he was going to his relief, denied that full wages are due to the termina- Hadley left Tappan and came toward him; tion of the voyage, unless they were lost or that he avoided and passed him, and that he, forfeited by what took place at Point Petre, Hadley, followed him as much as twenty-five the port of discharge. The affair which is feet toward the pump; that he then took a relied on as a forfeiture, or more properly pump-brake, and that Hadley then struck him as a bar to the claim for wages, took place on with his fist, and he then gave him a blow on the 21st of May, while the crew were dis- the head with the pump-brake, which brought charging the cargo. The captain being at him partly down, and then another, that that time on shore, the men, under the orders brought him to the deck; that he then went of the mate, were making up a raft of lumber to Tappan, whom Smith had down and was to be floated ashore, when a difficulty arose beating. He told Smith to let Tappan alone, between Tappan the mate, and Hadley one of but he refused and told Harriman not to strike the crew. While the mate was below making him. Harriman then gave him three blows wages, LIBEL for wages. The libellant shipped as a The facts are stated in the opinion of the court. L. D. Sweat, for the libellant. Supreme Court, N. Y.-Taylor v. Suyder. Upon the trial, the execution of the note was admitted, and it appeared that the maker of the note resided in Florida when the note was made, and also when it became due; that both the endorser and holder of the note resided at Troy, and that when the note fell due, notice of its nonpayment was given to the endorser. home as a prisoner to answer for his conduct | circuit judge of the third circuit, in September, to the laws of his country. And from the 1842. facts developed on the trial here, it appears to me, that the civil authorities were perfectly justified in this course. The consequence was that the libellant was disabled from performing the service for which he was engaged, and from the whole facts in proof in the case, he may justly be considered as having disabled himself by his own voluntary act. On the principles of natural justice and universal law, he cannot claim a compensation for services, which he has by his own fault disabled himself from performing. The libel must therefore be dismissed. Supreme Court, N. Y. THIRD CIRCUIT. Before the Honorable AMASA J. PARKER, Circuit Judge, of the Third Circuit." HIRAM TAYLOR V. ALEXANDER SUYDER im The circuit judge nonsuited the plaintiff on the ground that demand of payment should have been made of the maker, at his residence in Florida, and that such demand not having been made, the endorser was discharged. The plaintiff moved for a new trial on a case made. II. W. Strong, for plaintiff. J. D. Willard, for defendant. BY THE CIRCUIT JUDGE.-The note in suit was executed at the city of Troy, where it was dated, and where the endorser, Alexander pleaded with MARTIN SUYDER.-September Suyder, resides; but Martin Suyder, the ma 13th, 1845. PROMISSORY NOTE-WHEN DEMAND OF PAYMENT When the maker of a promissory note is resident of HELD that A. S. was charged as endorser, though ker of the note, resided in Florida. Being temporarily at Troy, he made the note, and immediately returned to Florida, where he contrived to reside till long after the note became due. No demand of payment was made from the maker, but when due, it was presented to the endorser at his store in Troy, and demand of payment made there, and due the circuit, a nonsuit was ordered, which the notice of nonpayment given. On the trial at plaintiff now seeks to set aside, and the question is now presented, whether under the circumstances stated, the holder of the note was obliged to send it to Florida to present it, and make demand of payment before he could charge the endorser. In Putnam v. Sullivan, 4 Mass. Rep. 83, it was held that where the maker had absconded before the note fell due, no demand was necessary, and in Widgery v. Monroe, 6 Mass. 451, it was decided that when the maker was out of the country, when the note became due, the holder was excused, from demanding payment of him. See also Anderson v. Drake, 14 John 117. The drawer of a note had removed to Canada: the note was drawn and dated at Albany, though not made payable at any particular place, and it was held that a demand at Albany was sufficient to charge the endorser. In the latter case, Ch. J. Thompson says: "It is necessary that |