US SUPREME COURT DECISIONS

Decided that if the facts stated in a special plea do not amount in law to a justification, yet if issue be joined thereon and if the facts be proved as stated, it is error in the judge to instruct the jury that the facts so proved do not in law maintain the issue on the part of the defendant.

If a collector justify the detention of a vessel under the eleventh section of the Embargo Law of 25 April, 1808, he need not show that his opinion was correct nor that he used reasonable care and diligence in ascertaining the facts upon which his opinion was formed. It is sufficient that he honestly entertained the opinion upon which he acted.

Error to the Supreme Judicial Court of the Commonwealth of Massachusetts under the 25th section of the Judiciary Law of the United States, vol. 1, p. 63, in an action of trespass by Watkins against Otis, a deputy collector for the District of Barnstable, for taking, carrying away, and destroying the plaintiff's schooner Friendship and her cargo of codfish.

The defendant pleaded that he was a deputy collector for the District of Barnstable; that by the 11th section of the Act of Congress of 25 April, 1808, vol. 9, p. 150, it is enacted

"That the collectors of the customs be, and they are hereby respectively authorized to detain any vessel ostensibly bound with a cargo to some other port of the United States whenever, in their opinions, the intention is to violate or evade any of the provisions of the acts laying an embargo until the decision of the President of the United States be had thereupon."

That the schooner Friendship, with her cargo, was lying in the harbor of Provincetown, in the District of Barnstable, ostensibly bound to some other port in the United States, in the opinion of the collector, with an intent to violate or evade the provisions of the acts aforesaid, whereupon the collector, by the defendant, his deputy, caused the said vessel and her cargo to be detained and removed from the port and harbor of Provincetown to the port and harbor of Barnstable, that she might be securely kept, and there also caused her to be detained, as it was lawful for him to do, so that the decision of the President of the United States might be had thereupon, and that the President afterwards, on 3 January, 1809, upon the report and representation of the said collector, approved and confirmed the detention, all which is the same taking, &c. To this plea there was a general replication and issue, upon the trial of which a bill of exceptions was taken, which stated that the defendant, in order to show that the collector had reasonable ground to believe that this vessel intended to violate or evade the embargo laws, chanrobles.com-red

Page 13 U. S. 340

offered in evidence the deposition of an inspector of the customs who testified that he went on board the schooner at Provincetown, which was wholly laden with fish in bulk, and a barrel of beef and a number of packages of small stores and three or four barrels of water. That he supposed she was bound to sea and gave information thereof, and of his suspicions, to the collector. That she had also a number of kegs of pickled oysters on board, and that he judged that the groceries were sufficient for the crew of such a vessel for thirty days, and that he had no doubt of her being bound to sea, which was the reason of his giving the information. Upon cross-examination, he said he had never lived in the county of Barnstable, and did not know the course and manner of their trade and navigation. It further appeared in evidence that on 19 December, 1808, written orders were given, by the collector, to one Andrew Garrett to detain the schooner, then lying in Provincetown harbor, and bring her to the port of Barnstable, and there secure her in the best manner possible. That the distance from Provincetown to Barnstable is about 30 miles by water. That on the voyage she accidentally ran on a point of land, and could not be got off until she was frozen up in the ice, and there remained until March following, when she was got off and brought up to the wharf and her cargo unladen and safely stored. That about 70 quintals of codfish were damaged, but the residue was in good order. That when she was so detained, she had nine barrels of water on board, but no bread. That her sails were on shore. That on 24 December, 1808, the collector wrote to the Secretary of the Treasury that he had detained the schooner Friendship, loaded with dry codfish and evidently intended for a foreign port, as she had an unusual quantity of small stores on board sufficient for such a voyage and fully watered, that their plea was that she was intended for a store ship, and a neighboring market, both of which it was sufficiently evident were without foundation. That on 3 January, the Secretary answered that the detention of the schooner was approved and confirmed by the President. That the collector had used due care and diligence in the preservation of the vessel and cargo. That on the 30 January, 1809, the Secretary of the Treasury wrote to the collector, authorizing him to release all vessels detained by him under the chanrobles.com-red

Page 13 U. S. 341

said 11th section of the act aforesaid, on bond being given, in the manner and to the amount provided by the 2d section of the Act of January 9, 1809. That on 15 February, 1809, the collector sent the following written notice to the plaintiff Watkins, dated at the custom house.

"Sir, I hereby request of you as the owner of the schooner Friendship, of Provincetown, detained by order under the 11th section of the embargo law of 25 April, 1808, at Barnstable, to give bond here, within three days after giving this notification, agreeable to the second section of the act to enforce the embargo passed on the 9th ultimo."

"I am, sir, your humble servant,"

"JOSEPH OTIS, Collector"

But that Watkins wholly refused to give such bond. That on 21 March, 1808, the collector wrote to the Comptroller of the Treasury, stating that on 24 December, he had detained the schooner Friendship under the embargo law for loading with codfish without a permit, which detention was approved and confirmed by the President. That on the passage of the Act of 9 January, 1809, he notified the owner that if he would give bond agreeably to the second section of the same, he would give her up to him, which he utterly refused to do, or to unload his vessel, for more than a fortnight. That he wished to know whether she ought not to be libeled.

To this letter the Comptroller replied, referring the collector to the attorney for the district. That the vessel was afterwards libeled in the district court, for having taking her cargo on board in the night, without a license, and without the inspection of the proper inspecting officers of the port. Upon trial she was acquitted.

The plaintiff also produced a laborer who stowed the fish on board the schooner who testified that the vessel "was destined to Boston for a market" and that the vessel and cargo were much injured in consequence of the detention. He also produced testimony that it was usual for vessels going from Provincetown to take water enough on board to last them to Boston and for two chanrobles.com-red

Page 13 U. S. 342

or three weeks, because the people did not like the Boston water. That it was usual to take eight or ten barrels on such a voyage. Whereupon the judge who tried the cause (Chief Justice Parsons) charged the jury

"that the several matters and things so given in evidence by the defendant Otis did not in law maintain the issue on his part, and also that it was the duty of the collector, as collector, to have used reasonable care in ascertaining the facts on which to form an opinion, and to transmit to the President a statement of those facts for his decision."

The verdict and judgment being against the defendant, he brought his writ of error. chanrobles.com-red

Page 13 U. S. 353