APPEL from the Circuit Court for the Eastern District of New York; the case being thus:
The act of Congress of March 2d, 1799, 'to regulate the collection of duties on imposts and tonnage,' enacts by its 50th section, 'that no merchandise shall be unladen from vessels coming from any foreign port but in open day; that any person who shall be concerned in thus unlading them, shall forfeit and pay severally, for each offence, $400, and be disabled from holding any office of trust or profit under the United States for a term not exceeding seven years, and that when the value of the goods unladed exceed $400, the vessel, tackle, apparel, and furniture shall be subject to seizure and condemnation.'
The same statute, after directing how seizures for violations of it shall be made, enacts:
'SECTION 71. That in actions, suits, or informations to be brought where any seizure shall be made pursuant to this act, if the property be claimed by any person, in every such case the onus probandi shall be upon the claimant.'
With this statute in force, the United States libelled in the District Court at New York the bark John Griffin, owned by one W. Downey and three other persons, on an allegation that her officers had aided in introducing segars of the value of more than $400 into New York City, from Cuba, A.D. 1868, in violation of the law.
There did not seem to be any reason to doubt that the segars were brought into the city by night from Cuba without paying duty, and that this was done with intent to defraud the government. And the only question in the case was whether Downey, the master and part owner of the vessel, had participated in this fraud by bringing the segars on his vessel.
The segars were seized in a room where they were stored in New York, and the owner of the segars, one Albren, was the principal witness for the government. His testimony amounted to this: that being in Havana, and desiring to get a large lot of segars through to New York without payment of duty, he met in that city Captain Downey, whose vessel, the John Griffin, was then lying at Matanzas taking in or waiting for cargo; that he suggested the matter to Downey, who neither accepted nor declined, but that a few days afterwards he received a letter from a carman at Matanzas saying if he would send the segars down, the carman would see them all right, which was done; that in a very few days after this he received in Havana a letter in these words,-the letter itself, which had been found by the custom-house officers in Albren's writing-desk before they made the seizure of the segars, being produced by them in evidence,--
MATANZAS, September 23d, 1868.
MR. JOHN ALBREN.
DEAR SIR: Your twenty-two boxes, trunk, and barrel package are all on board safe. I wish your boxes were all hid'en, the same as my sugar boxes. They are too easily distinguished, but I think they will be all right.
Yours, respectfully,
W. DOWNEY.
Albren further testified that shortly after the vessel arrived in New York the segars were delivered at a place designated or agreed on between him and Downey, and that he paid Downey over $3000 for his services in the matter. He mentioned the place where he met and paid Downey, and stated that a man named Morlina was present when this payment was made.
Morlina's testimony corroborated that of Albren as to the receipt of the money by Downey. He testified that he went with Albren and was present when Downey, whom he knew, and Albren met on the street and retired to an office in South Street; that he saw Albren hand Captain Downey a bundle of money, but did not know how much; that it was a bundle of paper money.
To rebut this apparently good case against the vessel, Downey himself came forward. Efforts were also made to impeach the veracity of Albren.