In the 69th section of the Act of 1799. 2 Laws U. S. 163; Act of 4th Aug. 1790. "To provide more effectually for the collection of duties."

Did the first clause of the 4th section of the Act of 1792 repeal this 49th section of the Act of the 4th August, 1790? Would Congress have so legislated, intentionally, as to have repealed that section by this clause by implication, and then have repealed this clause by implication by the re-enactment of that? Was the marshal to have the custody before process? If the 69th section of the Act of 1799 is to be construed as a repeal of the first clause of the 4th section of the Act of 1792, who, between that time and the present, has had the right to the "custody" of "vessels" seized?

If it were necessary to avoid this inconvenient construction, would not the court be justified in saying that, quoad the prosecution, the marshal is the "other person" appointed by the collector to take the custody of the property? The collector is the prosecutor. It is, by the 89th section of this act, made his duty to prosecute "without delay;" while the 69th section gives the custody of the property to him, "or such other person as he shall ap point for that purpose." If, then, the course of the "proceedings" requires that the marshal shall have the "custody" of the property by virtue of process, does he not, by the act of prosecution, quoad hoc, make him that "other person?" Burke v. Trevitt, 1 Mason's Rep. 96-100. Is it policy, further than is necessary, to continue property seized in this summary manner, in the hands, possession, and custody of a party in interest? The collector is such a party, he being entitled to a share of the proceeds if the property is forfeited.

Mr. Gilpin, in reply:

The argument against this motion does not deny the legal right of the collector to the custody of goods seized, but confines it to the cus286] tody merely incident to the seizure, and makes it expire with the commencement of proceedings for the condemnation.

Such a construction is contrary to the plain language of the 69th section of the Act of 1799. That act is the latest; subsequent to all others cited; its provisions are the actual law, no matter whether or not they conflict with any that are previous. If they are so clear as to leave no doubt, there is an end of the case. When the whole section is read together, there seems no room for doubt. "All goods, wares, and merchandise, which shall be seized by virtue of this act, shall be put into and remain in the custody of the collector, or such other person as he shall appoint for that purpose, until such proceedings shall be had as by this act are required to ascertain whether the same are forfeited or not; and if it shall be adjudged that they are not forfeited, they shall be forthwith restored to the owner or owners, claimant or claimants thereof; and if any person or persons shall conceal or buy any goods, wares or merchandise, knowing them to be liable to seizure by this act, such person or persons shall, on conviction thereof, forfeit and pay a sum double the amount or value of the goods, wares, or merchandise, so concealed or purchased." Is it not evident that this section is meant to provide for the custody of the goods

from the moment they are seized, as liable for forfeiture, up to that when they are adjudged to be forfeited or restored? Had the law meant that the custody should be changed during this interval, would it not have been so stated in this section? It provides for their custody until "proceedings are had to ascertain whether they are forfeited, and if they are adjudged not to be forfeited," they are to be given up. Is it possible to construe the sentence otherwise than as a saying that the judgment of the court is the proceeding by which the forfeiture is to be ascertained? If the law of 1792 were not in existence, could anyone doubt for an instant that this would be admitted without question? If so, it ought now to be admitted, for this is a subsequent statutory provision, to be ascertained from its express language; not by reference to a previous law, which cannot control or affect it." But the construction contended for is not only contrary to the language of the 69th section; it is contrary to the whole scope of the law of 1799. That law embraces all proceedings relative to imported goods. It provides for all cases that occur from the time of their arrival to the time of their final disposition, whether that be by their delivery to the importer or by their sale as forfeited. The duties of the collector, of the various revenue officers, and of the court are particularly set forth. Is it possible the custody of goods seized and waiting adjudication should not be explicitly provided for? Yet the only provision is that which gives it to the collector. Is it possible the law intended to give it to the marshal, when there is no provision to that effect? The duties of the collector in making seizure and instituting proceedings are minutely stated; the whole of these proceedings, whether by the court, the clerk, or the claimant, are prescribed; the sale, if the goods [*287 are condemned, is, by the express words of the law, to be made by the marshal. There is no omission to assign explicitly specific duties to the several officers, in every successive stage, from the moment the goods are imported; or to provide for each contingency that may occur in regard to them. The law of 1799 is elaborately drawn for these purposes. Would it not, then, be a total violation of its whole scope, so to construe the 69th section as, in the first place, to prevent it from embracing, as its plain tenor would do, the custody of the goods up to the time of judgment; and then, having done this, to confer that custody on an officer to whom it is never given in the same law, although that law was evidently intended to provide for and assign the specific duties of every officer? Yet to this result the opposite argument necessarily leads.

Nor is the construction contended for more opposed to the express language and general scope of these statutory provisions than it is to the whole spirit of the revenue system of the United States, as regards imported goods subject to impost duties. The leading and distinct feature of that system is to leave all goods subject to duty, in the actual custody of the collector, until the duties are paid or secured. Up to that time the government, through its revenue officer, keeps its lienholds its possession. The moment a vessel ar

rives within the waters of the United States. the collector, or his subordinate officer, takes possession of the goods; he ascertains the import duties on them; he examines whether they are liable to forfeiture; he provides warehouses for their safe keeping; if they are seized for forfeiture, he has legal proceedings instituted; if delivered to the claimant on bond, he sees that additional bonds for the duties are taken; he sells them if the duties are not paid or secured within nine months; his permit is necessary for their delivery. To allow the marshal to take them from the public warehouse, pendente lite, is at direct variance with this whole system, and for no corresponding benefit. It deprives the government of its security for the duties; it substitutes an officer having no connection with the revenue for him who is expressly charged with that duty, and with the preservation of the best security-the goods themselves-until that revenue is paid. The omission of this law to give to the collector the custody of vessels, as well as goods, confirms this view. It does not direct him to retain the custody of vessels seized, for they are not liable to impost duties; they are not articles affording a revenue; they do not come within the scope of the revenue system. It is true they are subject to the payments for tonnage, called duties; but these are in fact mere port charges, in no way resembling impost duties, or requiring the same regulations. The very omission, therefore, to include vessels in the provisions of the act giving the custody of goods to the collector, would seem to show that those provisions were made with reference to the revenue system. If so, they can only be consistent with it, by construing them in the manner contended for by the collector.

288*] *The argument in support of the opposite construction, and which goes to limit the custody of the collector to the mere possession incident to the seizure, does not controvert any of these grounds. It relies solely on an endeavor to show that other provisions of the Act of 1799 are inconsistent with the custody of the collector after the institution of legal proceedings. One point of the opposite argument is that the suit is to be "prosecuted to effect;" and that this cannot be done without surren dering the goods to the custody of an officer of the court; and that the collector is not an officer of the court, or bound to obey its order. To this it may be answered, in the first place, that the custody of an officer of the court is not necessary to the effectual prosecution of the proceedings for forfeiture; those proceedings consist in the ascertainment of certain facts in dependent entirely of the custody of the goods until their restoration or sale is decreed by a judgment, when the law provides the officer and the mode of effectuating that judgment, which ever it may be; in the mean time it is sufficient if the law provides that the goods are safely kept by any person to answer to the judgment; but in the second place, the collector is an officer of the court, and so constituted by this very law, so long as the proceedings are depending. In the words of the Circuit Court of Massachusetts in Burke v. Trevitt, 1 Mason, 100, the collector "is the mere official keeper of the court." Another point of the argument is,

that as notice must be given by the court of the seizure of the goods, such seizure must be one made under process of the court; the very words of the law cited to sustain this construction seem to controvert it, for they speak of the seizure of which notice is to be given as anterior to the libel when it is admitted that the only seizure on the process of the court must be subsequent to the libel; for on the allegations of the libel all its process is founded. Nor is it possible to sustain this distinction by reference to the words of the statute; it speaks constantly of seizure for forfeiture, but in every instance treats it as an act of the collector, never of the marshal. Besides, the distinction is unnecessary to secure the rights of any persons for whose benefit the notice is to be given. Again, it is said that before judgment the court may direct the delivery of the goods on bond, or their sale if perishable; and that either of these acts ends the collector's custody. It is not apparent how either of these acts of the court conflict with that custody, either to the injury of the collector, or of the security of the government; because in the first instance the act is expressly authorized and it is provided that full security both for the value of the goods and the amount of duties shall be previously given; in the other there is certainly no authority given to the court by any law, but if it were exercised, doubtless it would be attended with the same disposition of the proceeds of the sale. If, therefore, these acts do terminate the collector's custody, before judgment, it is only by the substitution of a security or other property equal in value, and as much under his control; this is not the case if the custody *be taken from him by the preliminary [*289 process of the marshal's attachment. Nor does the provision of the law, which directs the sale after condemnation to be made by the marshal, seem to conflict with the construction contended for by the collector; on the contrary, the express designation of the marshal, in this instance, and of the collector in the other, would seem to sanction his construction. But the sale is an executive act of the court, and properly done by its executive officer, who is bound to make his return immediately; this is in no respect similar to the custody of the goods before condemnation.

One point of the opposite argument remains to be noticed. It is said that if the Act of 1799 is construed as a repeal of that of 1792, it will leave no provision for the custody of vessels; and also that the latter act must have been equally a repeal of those of 1789 and 1790 which would remove all provisions for the custody of goods before process-a construction, it is alleged, so inconvenient that it would justify the court, if necessary, in order to obviate it, to consider the marshal as one of the "other persons" to whom the collector might himself confide the custody. To this argument the answer is, that the Act of 1799 is not a repeal of the Act of 1792, nor was the latter a repeal of those of 1789 and 1790. The Act of 1792 is an act generally explaining the duties and regulating the fees of the marshal, the others are acts elaborately arranging the revenue system; the clause in the Act of 1792 is subsidiary to the others; it refers to such cus

tirely of silk, and were imported from Liverpool, in England, in the ship St. Andrew, in the month of October, in the year one thousand eight hundred and thirty-eight, which port of Liverpool is a port this side of the Cape of Good Hope; the following point was presented, during the progress of the trial, for the opinion of the judges, on which the judges were opposed in opinion, viz.:

Whether the said silk hose was subject to the payment of the duty imposed on hosiery by the 2d clause of the 2d section of the Act of July 14th, 1832, entitled, "An Act to alter and amend the several acts imposing duties on imports."

Or whether, as manufactures of silk, not being sewing silk, they were exempted from the payment of duty by the 4th section of the Act of March 2d, 1833, entitled, "An Act to modify the Act of the fourteenth of July, one thousand eight hundred and thirty-two, and all other acts imposing duties on imports," which declares that all manufactures of silk, or of which silk is the component material of chief value, coming from this side of the Cape of Good Hope, except sewing silk, shall be free. Which point, upon which the disagreement has happened, under the direction of the judges of the said court, at the request of the counsel for the parties in the cause, was ordered to he certified unto the Supreme Court of the United States at the next session.

The case was submitted to the court, on the argument in the case of Bend v. Hoyt, by Mr. Raymond for the plaintiff, and Mr. Grundy, Attorney-General, for the United States.

293*] *Mr. Justice Story delivered the opinion of the court:

This case involves the second point only, which has been just decided in the case of Bend v. Hoyt, and, therefore, it is only necessary to say that it will be certified to the Circuit Court for the Southern District of New York, that the silk stockings and half-stockings mentioned in the case were exempted from duty on their importation, under the Act of the 2d of March, 1833, ch. 384.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of New York, on the points and questions on which the judges of the said Circuit Court were opposed in opinion, and which were certified to this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel; on consideration whereof, this court is of opinion that the silk hose, as manufactures of silk, not being sewing silk, were exempted from the payment of duty, by the 4th section of the Act of the 2d of March, 1833, entitled, "An Act to modify the Act of the 14th of July, 1832, and all other acts imposing duties on imports," which declares that all manufactures of silk, or of which silk is the component material of chief value, coming from this side of the Cape of Good Hope, except sewing silk, shall be free of duty. Whereupon, it is ordered and adjudged by this court that it be so certified to the said Circuit Court, and that this cause be remanded to the said court, that further proceedings may be had therein according to law.

The principle of the common law undoubtedly is that no property but that in which the debtor has a legal title is liable to be taken in execution; and, accordingly, it is well settled in the English courts that an equitable interest is not liable to execution. In the United States, different views have been taken of this question in the courts of the several gageor is regarded as the real owner of the propStates. Except as against the mortgagee, the morterty mortgaged; and this rule has very extensively prevailed in the States of the United States, that erty on an execution, and that it is also chargean equity of redemption is vendible as real propable with the dower of the wife of the mortgageor. The equity of redemption of a mortgageor of land in that part of the District of Columbia, ceded by the State of Maryland to the United States, cannot be taken in execution under a fieri facias. At the time of the cession to the United States, the rule of the common law was the law of Maryland. It is not necessary to refer to authorities to sustain a proposition that a chose in action is not liable to be levied on by a fieri facias.

A

PPEAL from the Circuit Court of the United States for the County of Washington, in the District of Columbia.

In November, 1836, the appellant filed a bill in the Circuit Court against Alpheus Hyatt and others. The following were the important facts in the case, as sustained by the evidence:

In December, 1818, William Cocklin leased to James Shields a lot of ground in the city of Washington for ten years from January 1st, 1819, for the rent of thirty-five dollars per annum. The lessee covenanted to erect and build, within twelve months, a two-story brick house upon the lot; and the parties agreed that if at or before the expiration of the lease, the lessee should pay to the lessor the sum of three hundred and seventy-five dollars, the rent should cease, and so if a portion or part of the sum of three hundred and seventy five dollars should be paid within the time, the rent should be diminished according to the sum or sums paid. On the payment of the whole of the sum, William Cocklin was to make to the lessee a good and sufficient title in fee-simple to the lot.

James Shields, on the 23d of September, 1823, mortgaged the lot and improvements upon it to John Franks, to secure a debt of $1,127; and on the 7th day of May, 1825, the mortgagee assigned all his right and title under the mortgage to Alpheus Hyatt, one of the appellees; and on the 9th day of may, 1825, James Shields released all his interest in the lot to Alpheus Hyatt, for the consideration of two hundred dollars. Subsequently, in May, 1826, Alpheus Hyatt, having paid to the heirs and representatives of William Cocklin the whole sum of three hundred and seventy-five dollars and the intermediate rent, they released to him the premises, and conveyed to him in fee-simple all their right, title, and property in the same.

On the eighth day of November, 1823, John P. VanNess, the appellant, obtained, [*295 before a magistrate of the County of Washington, a judgment for thirty dollars and twentyfive cents, against James Shields, and he caused a fieri facias to be issued on the judgment, on