United States v. One Hundred & Fifty Head of Cattle & Fifty-Two Calves , 3 Ariz. 134 ( 1889 )

PER CURIAM.

The United States marshal seized one hundred and fifty head of cattle and fifty-two calves.

The finding of the court was that fifty head of the cattle were imported from the republic of Mexico aud were dutiable, and that said fifty head of cattle were mixed with others. The court further found that the claimant, H. K. Hildebrandt, did not import the said fifty head of cattle with intent to violate the customs law of the United States.

The supplement to the Revised Statutes of the United States provides that in all actions to enforce a forfeiture of goods, wares, or merchandise where an issue of fact shall be found, the court shall find as a distinct and separate finding whether the alleged acts were done with an actual intent 'to defraud the United States, and in such cases, unless intent to. defraud shall be so found, no fine, penalty, or forfeiture shall be imposed. 18 U. S. Stats, at Large, 188, 189, sec. 16. [Repealed, U. S. Supp. Rev. Stats. 1891, 755, sec. 29.]

The claimant moved to retax the costs in this action as the same appears in the memorandum of costs, and to strike out from said memorandum of the costs the sum of $878.62, charged as marshal’s fees, filed herein by plaintiff, on the ground that no part of said costs were made by claimant, and therefore are not chargeable to him, and on the further ground that only $98.12 thereof are court costs.

The motion was denied by the court, which we conceive to be error.

The supreme court of the United States has held that in cases of seizure of goods for violation of the customs laws that the proceeding is at common law.

In the trials of all eases of seizures on land the court sits as a court of common law. The Sarah, 8 Wheat. 391; Morris v. United States, 8 Wall. 507.

In actions at law it is a general rule that the losing parties are to pay the costs. Ditludge v. Race, 92 U. S. 116.

We think that only in cases of a payment or forfeiture is the claimant or property seized liable for costs of same. Only costs of the trial should have been taxed against the appellant. The motion of claimant to retax costs should have been allowed. The judgment for costs is hereby reversed so as to retax the costs.