1816. Jones V. on which the judges of that court were divided in opinion, and was argued by counsel. On consideration whereof this court is of opinion that the replicaShore's exe- tion of the plaintiff is insufficient to avoid the plea of the defendant. All which is ordered to be certified to the said circuit court. cutor. Certificate for the defendant. (COMMON LAW.) JONES ET AL. v. SHORE'S Executor et al. THE UNITED STATES V. JONES ET AL. A bond was given to T. S., the collector of the district of Petersburg, under the 2d section of the embargo act of the 22d December, 1807, and a suit was afterwards brought by him on the same bond in the district court, and pending the proceedings, to wit, on the 30th of October, 1811, J. S., the collector, died; and judgment was recovered in favour of the United States on the 30th of November, 1811. On the 26th of the same November, J. J. was appointed collector of the same district, and entered on the duties of his office on the 14th of December, 1811; until which time T. S., who was deputy collector under J. S. at his decease, continued as such to discharge the duties of the office. The judgment of the district court was subsequently affirmed by the circuit court. When the bond was taken A. T. was surveyor of the district, and continued in that office until his death, which was after the commencement of the suit on the bond and before judgment thereon, and was succeeded by J. H. P. who was appointed on the 30th of March, 1811, and entered on the duties of his office on the 16th of the same month. It was held, that the personal representatives of the deceased collector and surveyor, and not their successors in office, were entitled to that portion of the penalty which is, by law, to be distributed among the revenue officers of the district where it was incurred. There being no naval officer in the district, the division was adjudged to be made in equal proportions between the collector and surveyor. THE material facts of these cases are as follows: On the 23d of November, 1808, a bond was executed at the custom-house of Petersburg, in Virginia, to the United States, by Thomas Pearse, master of the ship Sally, of Philadelphia, and Robert M'Adam, Daniel Filton, and George Pegram, jun., in the penal sum of 46,300 dollars, upon condition that if the cargo of said vessel, consisting of 830 hogsheads of tobacco, intended to be transported in said vessel from the port of Petersburg to the port of Boston, in Massachusetts, should be relanded in the United States, the danger of the seas excepted, then the obligation to be void, otherwise to remain in full force. The bond was, in fact, given to John Shore, the collector of the district of Petersburg, in pursuance of the second section of the embargo act of the 22d December, 1807, ch. 5. A suit was afterwards brought by the said collector on the same bond in the district court for the district of Virginia, and pending the proceedings in said court, to wit, on or about the 30th of October, 1811, John Shore, the collector, died; and judgment was finally recovered on the same bond, in favour of the United States, on the 30th of November. 1811. On the 26th of the same November, John Jones was duly appointed and commissioned by the president as collector of the 1816. Jones V. Shore's executor. 1816. Jones Shore's exe cutor. same district, and he qualified as such, and took upon himself the discharge of the duties of the office on the 14th of December, 1811; until which time, Thomas Shore, who was deputy collector under John Shore at the time of his decease, continued, as such deputy collector, to discharge the duties of the office. Mr. Pegram sued out a writ of error from the said judgment, to the circuit court for the district of Virginia, and Mr. Pegram having died pending the proceedings, the suit was revived by his administrator, and the judgment of the district court was, at May term, 1814, affirmed by the circuit court. At the time when the bond was taken by the collector, Andrew Torborn was the surveyor of said district for the port of City Point, and continued in that office until his death, which happened after the commencement of the suit on said bond, and before the rendition of judgment thereon, and was succeeded in his office by John H. Peterson, who was appointed and commissioned on the 3d of March, 1811, and qualified and entered upon the discharge of the duties of that office on the 16th of the same month. At the May term of the circuit court, 1814, the whole debt and costs recovered by the judgment, were paid into court by the administrator of Mr. Pegram. Cross petitions were thereupon filed by the district attorney in behalf of the United States, praying the whole sum to be paid to him, or deposited in the bank of Virginia, to the credit of the treasurer of the United States, by the present collector and surveyor of the district of Petersburg, and by the representatives of the deceased collector and surveyor, praying a payment over, and distribution of, the sum so recovered, according to the rights respectively claimed by them. A bill was also filed on the chancery side of the circuit court, by the representatives of the deceased collector and surveyor, against the present collector and surveyor, and the clerk of the court praying a moiety to be paid over to them, or such other portion as they were entitled to by law, and also for general relief. Upon the hearing of the cross petitions, the circuit court overruled the prayer of the motion of the district attorney; the court being of opinion that the United States were entitled only to a moiety of the money, and that the same ought to be paid to the collector of the district, and ordered the clerk of the court, accordingly, to pay the same to John Jones, the present collector, after deducting therefrom one half of one per centum for his commission. And the court being divided in opinion, whether the other moiety should be paid to the said collector to be distributed by him according to law, as this court should direct, or without any direction on the subject, certified the same question to the supreme court. Upon the hearing of the suit in chancery on the bill, answer, and proof, in which none of the facts were controverted, a question occurred before the court, whether the representative of the late surveyor, in right of his intestate, was entitled to receive the moiety of that portion of the penalty which is, by law, to be distributed among the several revenue officers of the district wherein the penalty was incurred; upon which 1816. Jones V. Shore's executor. 1816. Jones V. Shore's execator. question the court was divided, and the same question was certified to this court. Swann, for Jones et al. The whole body of embargo laws shows, that the collector is, ex officio, to receive penalties and forfeitures; and that he who is to receive, is to have his distributive share as his property of right, and to make the division among the other persons entitled. The term collector means the officer of the law, invested with legal immortality. Official obligations do not attach to the person of the individual, but to the office." The penalty may be released by the treasury at any time before the collector receives it. Wirt, for Shore's executor et al. The question is, whether, of these two officers, he who supports all the labour and inconvenience shall be entitled to the reward. The death of Mr. Shore did not discontinue his office; his deputy exercised the duties, as by law he was authorized to do, until the rendition of the judgment. The reason of the law is its soul; the intention of the legislature must be regarded; it must have been their motive to stimulate the zeal and exertions of the officers of the customs by an adequate incentive. Policy rendered it more essential in the embargo laws than in the ordinary revenue laws, and the reward was, therefore, attached to the incumbent who detected the offence, and prosecuted. The question is stricti juris, and must be de 4 Craneh, 171. Streshly et al. v. The United States. |