Thereupon it becomes unnecessary for me to determine the sufficiency of the search warrant issued to the State officers or the legality of its execution. The res was in the possession of the customs officers at the time the forfeiture proceedings was instituted. This gave the court jurisdiction. (Dodge v. United States, supra; The Underwriter, 13 Fed. (2d) 433.) At the time of the seizure by the customs officers, the property could not be said to be in the custody of the State court on appropriate proceedings so as to place it beyond the jurisdiction of this court. There was no conflict of jurisdiction. Whatever proceedings had been begun by issuance of the search warrant and the returns thereon were wholly abandoned, and when these proceedings were brought the property was not in the custody of any other court. (See Lion Bonding & Surety Co. v. Karatz, 262 U. S. 77.) The only question remaining is whether proper cause existed for the bringing of the forfeiture proceedings so as to throw upon the claimant the burden of proving that the property was his and not subject to forfeiture. On this aspect of the case there was evidence tending to show that the customs inspectors were called to East Brewster by State officials who had discovered a large quantity of intoxicating liquor, bearing foreign labels, in unoccupied cottages near the shore. These officials had possession of information from which it could be reasonably inferred that a dory had been used in transporting the liquor, that it had been recently stored in cottages near the place where the 11 men, who were later arrested, were found, that the conduct of some of these defendants in seeking to escape indicated that they had embarked upon some unlawful enterprise. It is safe to assume that the information was in the possession of the Government at the time of the institution of the proceedings. The inspectors found on the premises over 750 cases and sacks containing bottles of whisky and champagne which bore labels indicating foreign origin, for example, "Peter Dawson Scotch Whiskey." Before these proceedings had been brought, several persons had been indicted for introducing, in violation of the customs laws, the same liquor, and in the light of subsequent events it would seem difficult to find that the Federal authorities were acting without just cause in bringing these proceedings when the evidence within their knowledge and control was sufficient to convince 12 jurors beyond a reasonable doubt of the guilt of persons charged with the crime of unlawful importation. I find, therefore, that the Government has shown probable cause for the institution of the forfeiture proceedings and that, inasmuch as the claimant has wholly refused to carry the burden which is imposed upon him by section 615 of the tariff act of 1922 (U. S. Code, title 19, sec. 525), I find and rule that the liquor described in the information is liable to forfeiture. Compare: Vincent v. United States, 19 Fed. (2d) 344; General Motors Acceptance Corp. v. United States (C. C. A.), decided October 27, 1927; United States v. 394 Cases of Lawson Scotch Whisky, etc. (Dist., Ct. Mass.), decided October 5, 1927. A decree may be entered accordingly. (T. D. 42540) Decision of court Decision of the United States Circuit Court of Appeals for the Fourth Circuit in the case of Eagle Indemnity Co. v. United States, sustaining the decision of the District Court ordering forfeiture of the bond given for the production of evidence of foreign landing of the liquor cargo of the Cuban schooner G. H. Murray TREASURY DEPARTMENT, OFFICE OF THE COMMISSIONER OF CUSTOMS, To Collectors of Customs and Others Concerned: The following decision and judgment of the United States Circuit (92883.) E. W. CAMP, Commissioner of Customs. UNITED STATES CIRCUIT COURT OF APPEALS, FOURTH CIRCUIT (No. 2630) Eagle Indemnity Co., a corporation, plaintiff in error, v. United States, defendant ERROR to the District Court of the United States for the Eastern District of Virginia, at Norfolk NORTHCOTT, Circuit Judge: On February 24, 1924, the Cuban sailing vessel A formal entry was made by the Murray on February 24, 1924, two days While at Norfolk the customs officials found on board the Murray a large After the completion of the repairs on the Murray, but before the vessel was Bond was executed by Felipe Zameza, master of the schooner, as principal, VESSEL BOND (SINGLE ENTRY) (For lading or unlading at night, holidays, etc., to land equipment for repair, etc., to discharge on lighters, or outside of docks, to pay legal charges, penalties, etc., to land cargo in other districts or foreign port, to produce export manifests, declarations.) Know all men by these presents, that Felipe Zameza, master of the Cuban schooner G. H. Murray of Havana, Cuba, as principal, and Eagle Indemnity Company of New York City, N. Y., as sureties, are held and firmly bound unto the United States of America in the sum of ten thousand dollars, for the payment of which we bind ourselves, our heirs, executors, administrators, successors, and assigns, jointly and severally, firmly by these presents. Witness our hands and seals this 2nd day of April, 1924. Whereas, the Cuban schooner G. H. Murray from Havana, Cuba, has arrived or is expected to arrive at the port of Norfolk, Virginia, on Feb. 24, 1924, to enter and clear and to discharge and take on cargo and passengers pursuant to the provisions of sections 4197 and 4200, Revised Statutes, the act of February 13, 1911, the wireless act of June 24, 1910, and the amendments thereto, and other acts and regulations. Now therefore the conditions of this obligation is such that— (1) If the said principal shall pay to the collector of customs of the said port promptly on demand the sums chargeable under law and regulations in conformity therewith for services performed for said vessel by customs officers, and shall promptly pay any dues, charges, penalties, or other sums legally due the United States from any master or owner of said vessel on account of said vessel; (2) And if the said principal shall save the United States and the said collector harmless from all losses and liabilities which may occur by reason of the granting of any permit or license to said vessel to discharge or take on cargo, equipment, baggage, ballast, fuel, or other article at night, on Sundays, or holidays, or to land, place, or store the same on lighters or on piers, landing places, or on spaces adjoining thereto and if same shall not be removed therefrom until proper permits have been presented; (3) And if all articles shown on the manifest of said vessel to be destined for other United States customs ports and for foreign ports are landed at the destination stated and proof thereof is furnished the said collector in the form and within the time required by law and regulations or any lawful extension thereof; (4) And if complete manifests of all cargo of said vessel destined for foreign ports or noncontiguous territory of the United States, and shippers' export declaration and pro forma declarations therefor are delivered to the said collector in the form and manner and within the time prescribed in sections 4197 and 4200, Revised Statutes, Treasury Decision No. 35969 of December 14, (16) 1915, and other laws and regulations relating thereto; Then this obligation shall be void; otherwise it shall remain in full force and effect. [SEAL.] [SEAL.] FELIPE ZAMEZA, Master "G. H. Murray," EAGLE INDEMNITY COMPANY, By W. G. BRINKLEY, Attorney in Fact. After leaving port of Norfolk the Murray, as is shown by the evidence, lay off Cape Henry for at least two days without proceeding on her voyage, although the wind was a favorable one, and on June 10, more than two months later, was found by the Coast Guard vessel Ossipee anchored off the coast of Maine, near Matinicus Rock, about 78 miles from the city of Portland, her name covered with canvas. The voyage from Norfolk to St. Pierre could be made in favorable weather in a week or eight days. The value of the Murray's cargo was considered by the customs officials to be $35,000. If the cargo had been imported into the United States for medicinal purposes the duty thereon would have been $360,000, and if the cargo had been imported into the United States for industrial purposes the duty would have been about $36,000, exclusive of the internal-revenue tax, which under such circum-. stances is also collected by the collector of customs. No landing certificate or other evidence of the landing of the Murray cargo at St. Pierre being produced with the collector of customs at the port of Norfolk, and nothing further having been heard from the boat, on July 14, 1925, the Government of the United States instituted this action at law in debt in the United States District Court for the Eastern District of Virginia, asking judgment for the full penalty of the bond. The defendant, the Eagle Indemnity Co., demurred to the declaration. The demurrer was overruled and the defendant, Indemnity Co., filed three special pleas. Evidence was taken and the case submitted to the court without the intervention of a jury and judgment was given in favor of the United States for the full penalty of the bond, with interest from the date of judgment, from which judgment of the District Court, the Eagle Indemnity Co. sued out this writ of error. The declaration charges breach of the third condition of the bond, in that the cargo of the Murray was not landed at the port of St. Pierre, and in that there was not furnished within six months from the date of exportation to the collector of the port of Norfolk, Va., the proof required in the third condition of the bond as to such landing. There is no allegation of a breach of any of the other conditions of the bond in the declaration. No evidence was offered in the trial on behalf of the Government as to where the cargo was landed, and no evidence whatever was offered on behalf of the defendant. The only thing in the record tending to show what became of the vessel's cargo is special plea No. 3, filed by defendant, which is as follows: That no merchandise in the declaration mentioned was landed in the United States from said vessel G. H. Murray. That no part of the cargo of the said vessel G. H. Murray in the declaration mentioned was landed in the United States of America from said vessel G. H. Murray; that said vessel G. H. Murray upon being released by the authorities of the port of Norfolk continued its voyage to St. Pierre, Miquelon, where it arrived and attempted to land its said cargo in the declaration mentioned. That the duly constituted authorities of said port of St. Pierre, Miquelon, forbade, refused, and prevented the landing of said cargo at said port of St. Pierre, Miquelon, due, as the defendant is advised, believes, and alleges, to the fact that said cargo was not French made, against the wishes and intention and over the protest of the master of said vessel, and contrary to the instructions of the owners of said vessel and cargo. That thereupon, due to the action on the part of the authorities of the said port as aforesaid, in the said harbor of St. Pierre, Miquelon, the entire cargo of said vessel G. H. Murray was sold, and then and there transshipped and unladed from said vessel, G. H. Murray, and loaded on another vessel over which neither the master of said vessel G. H. Murray nor the defendant had any control. That the failure to furnish to the collector of the port of Norfolk, Va., a duly authenticated landing certificate from the authorities of the port of St. Pierre, Miquelon, was due solely to the fact that the said vessel was forbidden by the said authorities to land said cargo at said port of St. Pierre, Miquelon. And this the said defendant is ready to verify. R. BALDWIN MYERS. This day Samuel L. Ginsberg personally appeared before me, Belle Fisher, a notary public in and for the city and State aforesaid in my city aforesaid, and made oath that he is authorized to make this affidavit, that he is familiar with the facts and things contained in the above plea, that he has read said plea, and that he believes the facts and things stated in the foregoing plea to be true. Given under my hand this 22nd day of September, 1926. [SEAL.] BELLE FISHER, Notary Public. There is nothing in the record explaining who Samuel L. Ginsberg is or what connection, if any, he had with the Murray, or what means he had, if any, of knowing the facts set out in the plea, which he verifies upon belief only. He was not offered as the witness in the case, and no opportunity was given to examine him. Three points are raised on behalf of the Indemnity Co. as follows: First, is the bond to be considered as a forfeiture bond or a bond for indemnity. Second, in either case, is the Government entitled to recover the full penalty of the bond merely upon proof of the failure to furnish the landing certificate, required by article 1118, Custom Regulations 1923, and Third, is the production of the affidavit of Samuel L. Ginsberg a compliance with condition No. 3 of the bond. Several other points were raised on behalf of the Indemnity Co. in the court below, with respect to the authority of the collector to require the bond given, and with respect to the fact that the bond was given under duress, but these points have apparently been abandoned by the Indemnity Co. here. An examination of the tariff act of 1922, (secs. 435, 441 and 442, and sec. 1118 of the Custom Regulations), seems to show conclusively the authority of the collector to require the bond from the master of the Murray; and in United States #. Mora (97 U. S. 413), it is clearly held that a bond given under similar circumstances, was not given under duress, and there Mr. Justice Bradley said: If the shipper chooses to give the bond in order to get his goods cleared it was a voluntary act on his part; and what ground has he or his sureties to complain? As to whether or not the bond in this case is a forfeiture bond or an indemnifying bond, there seems to be some question. As to conditions one and two, the bond seems clearly to be an indemnifying bond. As to condition three, it seems equally clear to us that it is a forfeiture bond. The question then arises whether a bond may be an indemnifying bond with respect to some of its conditions, and a forfeiture bond with respect to other of its conditions. In United States v. Mora, supra, it is said: Where two conditions of a bond are severable, and one of them is good and the other not sustainable, the bond can be enforced as to the good condition. Therefore, if the conditions of a bond are severable and some of them indemnifying and some conditions of forfeiture, the bond can be enforced as to the conditions of forfeiture. The only condition declared upon here is the third condition. Bonds conditioned similarly to the third condition in this bond have been held to be forfeiture bonds by the Supreme Court of the United States in a number of cases. (Clark v. Barnard, 108 U. S. 436; United States v. Montell (Taney 47), 26 Fed. Cas. 1293; United States v. Dieckerhoff, 202 U. S. 302.) In the latter case an able discussion of this question will be found by Mr. Justice Day. There an importer who had been withdrawing certain merchandise from a customhouse before payment of duties thereon gave a redelivery bond for double the value of the package, conditioned for the return of the package unopened. Default was made in this condition and the Government sued for the full penalty of the bond, and there, as here, the defense was interposed that the Government was only entitled to recover such damages as it had proven. The court said: We In carrying out this purpose we hold the law permitted the taking of such bond as was given in this case, providing that if the party did not return the package required he should pay double the amount of the value thereof. think such undertaking, for this manner of discharging this duty or paying the value stipulated, was intended to and does relieve the Government from the necessity of showing any actual damage or loss. It is suggested that the Government may prove the damages sustained possibly by the testimony of informers or of those who packed the merchandise before shipment, and in other ways. But, in our opinion, it was the purpose of this statute and the bond executed in the case to dispense with the necessity of resort to this method of showing damages, and to fix double the value of the package ordered to be returned, as a |