United States v. Morgan, 26 F. Cas. 1315

United States v. Morgan

26 F. Cas. 1315 | U.S. Circuit Court for the District of Pennsylvania | 1811

WASHINGTON, Circuit Justice.

The bond upon which this action is founded, is a statutory instrument, taken to the United States by one of its officers, which the court admits to have been proper. But, as that officer had no authority to take such a bond, but in virtue of a power conferred upon him by *1316the government oí the United States, the power should have been, at least, substantially- pursued. The embargo law, under which this obligation was taken, does not set out, in precise terms, the form of it; but the material parts of it are clearly prescribed. It is to be in a sum of double the value of vessel and cargo, with condition that the goods shall be relanded in some port of the United States, dangers of the sea excepted. If it be taken in a greater sum than the law directs;—if the condition stipulate a reland-ing elsewhere than in the United States;— if it stipulate a relanding absolutely, when the law' requires it to be done on a certain condition;—or if it bind the obligors to do more than the law • requires—it is not “the bond w'hich the officer was authorized to take, and all is void. A contrary doctrine might be productive of the most intolerable oppression to the citizen, as well as of detriment to the government. The court will not say, that if such a bond be voluntarily given, it would on that account be valid. But there is no ground for saying that the bond in question was voluntarily given, since the reverse is stated by the defendants, and admitted by the United States.

Applying the above principles to this case, the bond is void—First, because the condition is to reland the cargo within the United States, although the1 obligors might have been prevented from doing so, by a peril of the sea; ,and, secondly, because the condition requires the obligors to return the certificate of relanding to the collector at Philadelphia, within a limited time, whereas the law did not impose upon the obligors the necessity of returning the certificate to that officer at all, much less to do so within any prescribed period.

Demurrer overruled, and judgment for defendants.