Cambioso v. Maffet , 2 Wash. C. C. 98 ( 1807 )

WASHINGTON, Circuit Justice.

The argument of the defendant’s counsel proceeds upon two mistakes; first, that this account is offered as a settled account, which I do not understand to be the case, and which certainly it could not be. The account is not •of itself evidence of any debt; it is a mere exhibition of the items of the debt, which must rest upon, and can only be supported by other evidence. If the witness in this case had sworn positively that, to his perfect recollection, every item in this account was correct, it is clear, and it is admitted, that such testimony would establish the demand, unless such evidence was contradicted, or the witness discredited. In such a case, no objection could be made to the account being read, as containing the items of the demand: but still the evidence, not the account, would be the foundation of that demand. But the witness does not swear positively; yet this is no objection to the offering the account, and it will be for the jury to say, if the evidence to prove the items in it is sufficient to •satisfy them. Again, the witness is not only not positive in his evidence, but he assigns, it is said, a bad reason for believing it to be correct. This goes still further to weaken his evidence; but the evidence is equally competent, though not equally strong. These considerations may be properly urged to the jury, who are judges of the weight of evidence, and of the credit of witnesses; but they do not affect the admissibility of the evidence. The second mistake is, that the books of Maffet and of Gambioso, are better evidence than the testimony of a witness, to establish this account, and therefore such inferior evidence is inadmissible. I think quite otherwise. Cambioso’s books would not be evidence at all for him, nor Maffet’s for the defendants, unless supported by other testimony; and though they might be evidence against them, yet they are not of a superior dignity to a witness proving the same fact. This case is very unlike that put at the bar, of a bond, which ought not to be proved on non est factum, by evidence similar to what is given by Maffet in this case. In that, the paper itself is evidence of the debt, and the witness is only examined to authenticate and verify the paper, so that it may be read. Then, if the witness should say that he believed the bond to have been executed by the obligor, because of his confidence of the correctness of those who appear as witnesses to the execution, the court would lay its hands on the paper, and say it was not sufficiently authenticated to make it evidence to be laid before the jury. But in this case, the- account is not evidence that a shilling is due. The witness is not called upon to authenticate the paper, but to prove the truth and correctness of the items in it. I do not rely upon the evidence of Maffet as the acknowledgment of the party, because it was made after he had ceased to have an interest in the estate, but as the evidence of a witness of whose credit the jury is to judge.

The defendant’s counsel, after endeavoring to impeach the credit of Maffet, and to show the insufficiency of his evidence to establish the account, contended, that the whole of the demand arising from the transactions in violation of the revenue laws of the United States, cannot be enforced in any of the courts of the United States. They read the different revenue laws, to show that a vessel cannot obtain an American register so as to exempt her cargo from the payment of alien duties, where a foreigner is partly interested in the vessel; and that the American registers for these vessels were obtained by the perjury of Maffet. See 2 Acts Cong, pp. 131, 144; 1 Acts Cong. p. 342, § 36; Id. p. 251, § 2; also the following cases, to prove the general principles: [Maybin v. Conlon; Duncason v. M’Lure; Murgatroydv. M’Lure] 4 Dall. [4 U. S.) 299, 308, 342; 5 Term R. 594. That if it were necessary to bring home to a foreigner a knowledge of the laws of the foreign country, Gambioso was bound by the knowledge of Maffet, his partner and agent. 3 Term R. 454.

For the plaintiff, it was answered, that the principle does not apply to foreigners, unless they are proved to have known of the laws they have violated, and that they have been so violated: that it should appear that Cambioso knew of the revenue laws of the United States, and also that Maffet had registered the vessels as his sole property. This appears to have been relied upon in all the cases on this subject. 3 Term R. 454; 4 Term R.' 40. That if the objection should apply to the balance claimed on the vessels, still the claim is separable (3 Vezey, Jr. 373); and the objection is inapplicable to the balance claimed on the cargoes, unless express notice can be proved; for, though an alien cannot be a part owner of an American registered vessel, yet he violates no law by being concerned with a citizen in the cargoes carried ih an American registered vessel, for he pays no higher duties in such a case than a citizen; all depending on the character of the vessel, not of the person. In the third place, it was contended, that if the law be against the plaintiff, as to the balance claimed on account of the vessels and cargoes, subject to pay duties; still it does not apply to a part of the plaintiff’s demand, on those portions of the cargo which paid no duties at all.

WASHINGTON, Circuit Justice,

delivered the charge of the court. The only part of the case which the court will notice, is the point of law which has been raised; as to the weight of the testimony, or credit of the witness, the jury will judge.

The facts on which this point rests are few. Cambioso and Maffet were jointly interested in a number of vessels, and in the cargoes shipped on board of them to this country, upon which transactions distinct balances are stated in favour of Cambioso, and are now claimed by his executors. Maf-fet was an American citizen residing in Philadelphia, and Cambioso an alien, residing in Curacoa. Under the laws of the United States, nothing could protect these parties from the payment of alien duties, on the vessels or on the cargoes, (except such parts as were not dutiable at all,) but an American register. This, however, could not be obtained, in consequence of Cam-bioso’s being an alien. If obtained, it must have been by a concealment of his interest, and by the perjury of him in whose favour the register was granted. Vet it appears that such registry was obtained by Maffet, as the sole owner or these vessels; and in consequence of such concealment and perjury, a number of mercantile adventures were carried on by Maffet and Cambioso, on which this claim is founded, for considerable balances in favour of the latter. The defendant insists that this claim cannot be enforced in the courts of the United States; because those courts cannot lend their aid to establish a demand founded upon a violation of the laws of the United States. This principle of law may not, in a moral point of view, destroy the right of the plaintiff; but it goes to defeat his remedy in the tribunals of this country. The soundness of the principle, as a general one, is acknowledged by the plaintiff’s counsel; but it is contended to bo inapplicable to foreigners, who are not bound to take .notice of the revenue laws of a foreign country, unless proof is brought home to them of a knowledge of those laws, and of every fact necessary to apprize them of the breach of them. But we do not understand how a knowledge or ignorance of the foreign law can be important; for if a foreigner is bound, in any case, to take notice of such laws, it is no defence for him that in fact he did not know them. It was his duty to know them, and his ignorance shall not excuse him. If he is not bound to take notice of them, then it is of no consequence whether he did or did not know them. In some cases, a foreigner is not bound to take notice of foreign revenue laws. Por if he makes a firm and final contract, completed m his own or a foreign country, it is nothing to him whether a* use may, or may not be made of the contract in violation of the revenue laws of a foreign country. In the case of Holman v. Johnson, Cowp. 341, the sale was completed in Prance, and the vendor was, in no respect, concerned or aiding in the illicit use intended to be made of the goods, though he knew of such intention. Not so as to a citizen, who. though the contract be complete, yet, if he be knowingly instrumental to a breach of the laws of his own country, he cannot have the aid of those laws against which he has offended. As if he sell goods for the purpose of their being smuggled; lends money to a person at a gaming-table, for the purpose of enabling the borrower to violate the law against gaming; or the like. But if the contract of the foreigner is to be completed in, or has a view to its execution in a foreign country, and is repugnant to the laws of that country, he is bound to take notice of them. If so, how much stronger is the case of a foreign merchant, owning property and carrying on trade in another country, by means unauthorized by, and in violation of the laws of that country? In such case, he is not only presumed to know, but is bound to take notice of them. He contracts and does business under the faith and sanction of those laws; and shall he not be bound by them ? Cambioso then knew, or ought to have known, the laws of the United States, as to the registering of vessels; that he could not be exempt from the payment of alien duties, unless the vessels were registered; and that such register, if obtained, must be so by practising a fraud upon the laws. Is >t possible that he, a partner with Maffet in these vessels and cargoes, and acting with him in the whole business, could be ignorant that he was not burdened with the payment of alien duties? But if this could be conceived, yet the illegal acts, in the profits of which he is now seeking to participate, were done by his partner or agent; for whose conduct he is responsible, though his ignorance of the law could be proved.

The court has been called upon to distinguish between the claim on account of the vessels, and of the cargoes. But for what purpose, as to such parts of the cargo as were liable.to duties? Being concerned with Maffet in the vessels which carried the cargoes, the cargoes could not be exempt from alien duties, unless the vessels had American registers. But he knew that they could not legally obtain such registry. If so, he knew also, that the cargoes must be subject to the payment of alien duties. Could he be ignorant that the cargoes were not charged with such duties? This is equally as improbable, as that he should not know that the vessels were subject to such duties. Upon the whole, then, it is clear, that if proof were necessary to be brought home to Cam-bioso, of his knowledge that these vessels had obtained the character of American vessels, by a fraud upon the laws of the United States; such proof is furnished by the nature of the transactions themselves. But whether he had such knowledge in fact or not, the frauds were committed by his partner or agent, by which he must be affected: and as to the revenue laws themselves, he was bound to take notice of them. As to any goods which may have been imported in those vessels into this country, which were free of duties, they are subject to a different consideration. Such importation was not a violation of the revenue laws. As Cambioso gained nothing, and the United States lost nothing, by a concealment of his interest in those goods, or in the vessels; there was no such fraud as would vitiate his demand for any balance due on their account. It was contended that Cambioso, by sending to Maffet documents respecting the cargoes, as belonging to Maffet, enabled him to commit perjury in the oath which he took at entering them, and that thus participating in this immorality, he ought not to recover. But it by no means appears that the oath taken by Maffet on entering such goods as his sole property, was even false, much less that it was perjury. We do not observe the oath or any part of the law requires that all the partners should be named. The object of the law is to insure the payment of duties, and not to disclose the names of the owners of the property. The adoption of the doctrine contended for, might be extensively mischievous to dormant partners. But even admit that a false oath was taken by Maffet, by means of the papers sent to him; we do not perceive how this can affect the right of Cam-bioso to recover the value of these goods sold by Maffet, for which he was justly indebted to Cambioso. Cambioso violated no law of the United States, in concealing his name as part owner of these goods.

Verdict for defendant.