38 F. 80 | U.S. Circuit Court for the District of Southern New York | 1889
(after stating the facts as above.) This action is for the forfeiture of the value of gloves imported by the deceased, for alleged fraud
The action manifestly belongs to the general class of actions for the recovery of penalties and forfeitures. As such, under the early maxim of the common law, it would die with the person, — actio personalis moritur cum persona. The statute of 4 Edw. III., c. 7, called the statute de bonis asportatis in vita testatoris, greatly limited the effect of this maxim, and gave actions tó executors for trespass to their testators’ goods and chattels. In many, if not all, of the states of the United States, there are also additional statutes that very much limit the application of the old common-law rule. By the statute of Massachusetts actions survive for damage done to the real or personal estate; by the statute of New York (2 Rev. St. p. *448, § 1) actions survive “for wrongs done to the property, rights, or interests of another, for which an action might be maintained against a wrong-doer.” Under these statutes it is held that negligent injuries to a wife, who was a passenger on the cars, which caused expense and loss of her services, was a wrong to the husband’s rights and interests, which survived, (Cregin v. Railroad Co., 75 N. Y. 192; see, also, Norton v. Sewall, 106 Mass. 143;) so, an action for fraud by the grantor on the sale of land, (Haight v. Hayt, 19 N. Y. 464; Cheney v. Gleason, 125 Mass. 166;) but actions for penalties not based upon the theory of affording compensation to the injured parties for damages sustained, do not survive, (Stokes v. Stickney, 96 N. Y. 323;) nor for special damage through a libel, (Cummings v. Bird, 115 Mass. 346;) nor an action for breach of promise of marriage, (Wade v. Kalbfleisch, 58 N. Y. 282; see 22 Amer. Law Reg. 353, 425.)
There is no statute of the United States providing what causes of action shall or shall not survive. Section 955, Rev. St. U. S., merely provides for the course of procedure “in case the cause of action survives.” The question here is to be determined, therefore, according to the nature of the cause of action, and the law that governs it. In those causes of action that arise under the state laws, or are subject to their operation, the law of the state will determine the question; in other cases it must be determined by the principles of the common law, as recognized and adminis
Independently of the state statutes, a distinction is recognized at common law between cases where the wrong-doer derives some benefit by his wrong from the injured person’s estate, and cases unaccompanied by such benefits or injury to property interests. Thus, in Humbly v. Trott, 1 Cowp. 376, Lord Mansfield says:
“Where, besides the crime, property is acquired which benefits the testator, there an action for the value of the property shall survive against the exec-tor. * * * So far as the tort goes, an executor shall not be liable; and therefore it is that all public and all private crimes die with the offender, and the executor is not chargeable: but so far as the act of the offender is beneficial, his assets ought to be answerable, and his executor shall therefore be charged.” U. S. v. Daniel, 6 How. 11, 13; Jones v. Varizandt, 4 McLean, 604.
• In some cases the punishment of offenses is divided by reserving to the injured person his right of action for damages for the actual injury to him, or by forfeiting a specific sum to be paid to him by way of civil damage for injury to his property rights, in addition to other punishment for the public offense; as in the punishments provided by the laws of 1793 and ,1850 for aiding .in the escape of fugitive slaves. See Norris v. Crocker, 13 How. 429, 438, 440. In such cases, where compensation for injury to property is either reserved or specifically provided for, the cause'of action, as to that part, might possibly be held to survive.
Statutes punishing fraud on the revenue are in part remedial, not simply and purely penal statutes; and for that reason they are not construed with the strictness of penal statutes. In Taylor v. U. S., 3 How. 197, 201, Story, J., says:
“Laws enacted for the prevention of fraud, for the suppression of a public wrong, or to effect a public good, are not, in the strict sense, penal acts, although they may inflict a penalty for violating them. It is in this light I view the revenue laws, and I would construe them so as most effectually to accomplish the intention of the legislature in passing them.”
A consideration of the numerous provisions of the statutes, from the act of 1799 downward, forfeiting goods or their value, or specific sums, for offenses affecting the revenue, shows that these statutes, as a class, while remedial in part, are mostly highly penal. Generally the amount of the forfeiture is out of all proportion to the pecuniary loss incurred, or likely to bo incurred, by the government in the particular case. A whole invoice, as in this instance, (until the act of 1874,) was liable to forfeiture for a false statement in a single item. The heavy forfeitures imposed are designed more to prevent the commission of offenses than to afford mere compensation or indemnity to the government, or to the injured party. In the case of Stockwell v. U. S., supra, the goods, under the act of 1823, became the property of the government. By the concealment of the goods, the government would lose its property. Much emphasis was laid upon this circumstance. In the present case the forfeiture was in the alternative, viz., “of the goods or their value,” and in such cases there is no forfeiture, and hence no property in the government, unless and until the government makes its election to pursue the goods, which in this case it did not do. See cases cited in U. S. v. Auffmordt, 122 U. S. 209, 7 Sup. Ct. Rep. 1182, 19 Fed. Rep. 901. No division of a gross sum forfeited can be made, so as to distinguish the government’s actual loss, if any, from the satisfaction for the public offense. The recovery must be for the whole value of the goods or nothing, although the excess over the entered value may be but a small percentage. No precedent has been shown for reviving actions upon forfeitures that are mainly penal, though to some extent remedial. The instances of the death of defendants in such cases must have been numerous; and the absence of any precedent for revival of such actions is of, no small weight as evidence that no such right in this class of cases has ever been supposed to exist. Besides the customs and internal revenue statutes, there are many provisions for forfeitures in the laws relating to navigation and to patents, in some of which the sums forfeited have manifest reference, in part, to compensation to persons whose pecuniary rights have been violated, to the profit of the wrong-doer. The case of Schreiber v. Sharpless, above cited was of precisely this kind. Section 4965 forfeited certain sums for every copyrighted photograph, etc., Which should he illegally manufactured or sold, etc., one-half of the sum forfeited “to go to the proprietor, and the other half to the use of the United States.” There can be no doubt that this provision for “the proprietor” was by that statute intended in part as compensation or indemnity to him, quite as much as the forfeiture imposed by the revenue laws was in part de