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U. S. District Court.-The Schooner Cherokee.

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private property." And affords full proof that the territories were occupied by a resident population, and also that grants of lands, of indefinite location and extent, had been previously made by Spain, (Art. 6 and 8.) All rights of private property remained unaffected by the treaty.

The legislation of Congress, and the adjudications of the United States courts from the period of cession to the present time, are judicial notice in this cause, that the United States did not become proprietors of the whole of the Floridas by the cession; on the contrary, that very large portions of both territories have been always claimed and occupied as private property, under title paramount to that of this government.

It is, accordingly, necessary for the plaintiffs to prove that the premises from which the timber in question was cut or taken, were at the time public property.

The plaintiffs, on the hearing, and by their proofs, allege that the timber in question was taken from sections 31 and 32 of township 10 south, range 24 east. The only evidence offered to the fact is, that these lands were surveyed by the United States surveyor, and have been recently watched, occasionally, by their timber agents, to prevent trespasses, and that on the 11th of June, 1851, entries were made by an individual, of parts of two lots in each of these sections. The further proof, that it is generally understood in that region of country that the United States own lands adjacent to the St. John's river or its tributaries, is too loose and indefinite to aid a claim to these particular lots.

No legal evidence, affecting the owners of the vessel is given, that the timber transported by her was taken from either of these lots. Indeed, there is no proof whatever to that fact, other than the declaration of one J. W. Pearson. It is unnecessary to criticise the versions of these declarations given by different witnesses, because I hold them inadmissible. to create a forfeiture of the vessel as against the interests of other parties. The vessel went out from a port in New Jersey, under a charter from the master to a Mr. Grier, and was by him consigned to Pearson to load her with a cargo of timber. The charterer accompanied the vessel. Pearson was no way the agent of the master or owners in loading the schooner. He, on his own account, supplied the timber to the charterer, without other interference by the master than his repeated warning not to put any United States timber on board. The charter contained the usual qualification to the engagement to take a full lading, and that it should be lawful cargo. Pearson was not the agent of the owners, nor was he authorized to bind them or the vessel by his declaration or admissions. The general principle is, that the admissions of agents affect even their direct principal only when made during his continuance of the agency in regard to a transaction then depending et dum feret opus, (1 Greenl. Ev., 6th ed., sec. 113 and Notes; Rouse Crim. Ev., 54.) Under this doctrine the declarations or admissions of the charterer himself that he received on board an unlawful cargo knowingly would not be permitted to implicate the vessel or her owners in an illicit transaction, because he had no direct nor implied authority so to employ

the vessel.

In this case the offence charged in the libel is, that the master com

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U. S. District Court.-The Schooner Cherokee.

mitted the unlawful act, and the proof offered to support the charge is the admission of an agent of the charterer. The statute subjects a vessel to forfeiture for acts committed by her consignee; but it is doubtful if, in such cases, the corpus delicti could be proved, by his declarations, or confessions alone, (Rouse Crim. Ev., 37.) The testimony is direct and positive that the master forbade any United States timber being laden on board, and was assured by the consignees that none of this cargo came from the public lands.

I think, on these points, the defence to the libel is complete.

But further, supposing the timber in question was taken from the public lands without proper authority, and that the consignee, knowing the fact, loaded it on board the vessel, and that such a transaction might subject the vessel to forfeiture, this libel is not so framed as to entitle the plaintiffs to that decree upon its allegation. The rules of pleading require libels for forfeitures to set forth distinctly the grounds and causes upon which a forfeiture is demanded, and they must bring by plain averments the supposed offence within the provisions of the statute on which the action is founded, (Sup: Court Rules in Ad'y 22-9. Wheat. 401, The Merino; 12 Wheat. 18, The Palmyra.)

The allegation is, that the offence was committed by the master, whilst the proof goes no further than to implicate the consignee in acts which would legally forfeit the vessel,-for, in my judgment, the second and third counts or allegation of the libel are not within the provisions of the statute, and no decree of condemnation can be rendered on them, if fully proved.

These counts assume, that the offence is committed by the act of taking the timber on board and transporting it to New York, although the master was ignorant that it had been taken from public lands.

I do not accede to this interpretation of the statute. The second section of the act creates two classes of offences. The first is transporting any timber cut on lands of the United States reserved for the use of the navy; and the other, transporting any live oak or red cedar timber, cut on any other lands of the United States. These two clauses of the section are separated in punctuation by a semicolon; the term knowingly is prefixed to the first branch, and is not repeated in the second. The argument on the part of the United States is, that the offence under the second clause is consummated by the commission of the prohibited act, without regard to the scienter of the accused party.

It seems to me, this construction of the law is not sanctioned by the arrangement and connection of the two sentences, nor by their general design and purport. In the first instance, where it is admitted, a scienter must be charged in the libel and proved on trial, in order to establish an offence, the prohibited act embraces live oak and red cedar equally with the other clause, for it interdicts cutting and carrying away any timber; and as it relates to lands reserved by the United States for the use of the navy, would seem much more to justify an implied notice or knowledge, in the whole community of the United States title, from the fact of such reservation for public use, than in the second instance, where no specific act need be done by the United States, beyond accepting the

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U. S. District Court.-The Schooner Cherokee.

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cession of the lands, in order to bring the lands within the protection of this statute.

It must, accordingly, be far less likely that the community, as matter of fact, is apprised that sections 31 and 32 in this case, not reserved, belonged to the United States, than if they had been surveyed, reserved and set apart for the use of the navy.

On this state of the facts, there is a strong improbability that Congress would impose the penalty of forfeiture of vessels engaged in carrying away timber which had been cut on the lands generally and unreserved, without any knowledge of, or notice to, the owner, master, or consignee of the vessel, and would forbear to inflict the same penalty for the offence on lands reserved for the use of the navy, unless it be averred and proved that the owner, master, or consignee of the vessel knew that the timber came from those lands, and had been obtained without proper authority. The reason of the case stands strongly opposed to such an interpretation of the law.

Besides, the arrangement of the two clauses and the rules of syntax would naturally carry the qualification of knowingly, from the first paragraph to the second, particularly considering that a common penalty was imposed in both, and in the second instance for acts committed any where within the two territories and irrespective of any reservation or special appropriation of the lands.

It appears to me, that the government in taking to itself a protection for its lands within these territories, against trespasses, higher and different from what at that day it enjoyed elsewhere in the United States, intended to exact these extreme penalties only in case of wilful depredations upon the public property; and that the forfeiture of a vessel employed in transporting timber cut on lands of the United States, cannot be enforced without proof that the wrong was done knowingly. The libel in this case must be dismissed.

First-Because the action cannot be sustained except upon the averment and proof that the acts charged as a public offence, were done by the master wilfully or with knowledge of their culpability.

Second-Because the confessions of the consignee of the vessel of his own knowledge in the premises, are not admissible to charge the offence on the owner or master of the vessel.

Third-Because, if such proofs could be received, it is left doubtful upon the evidence whether the portions of lots No. 31 and 32, on which the timber in question was cut, at the time belonged to the United States, and if they did so, whether Pearson, the consignee, cut or removed the timber therefrom or acquired it, knowing that fact.

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N. Y. Sup. Court.-H. P. Russ and G. W. Reed agt. The Mayor and others of N. Y.

N. X. Superior Court.

[December Special Term, 1853.]

Before Mr. Justice HOFFMAN.

HORACE P. RUSS and GEORGE W. REED against THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, BARTHOLOMEW PURDY, Commissioner of Repairs and Supplies, GEORGE COOKE, and GEORGE CATLIN.

Under the ordinances of 1849, proposals defective in substance ought to be rejected; and the award of the contract made to the next lowest bidder whose proposal is perfect. The amendment permitted should be strictly of matters of form.

A proposal signed by C. & Co. is a defect in substance. And particularly a proposal accompanied with the consent of a single surety is substantially defective, and incapable of amendment.

The Corporation cannot interfere in any given case, and render valid what, under the ordinances, is invalid. Their supervisory power can only be exercised by discontinuing the work altogether, and by refusing an appropriation.

The remedy of a party to whom a contract should have been awarded is by an action for damages, not by an injunction against performance of the work by another.

The facts of the case sufficiently appear in the opinion of the Court. Willard, for plaintiffs.

Horace F. Clark, for defendants, Cooke and Catlin.

R. S. Dillon, for the Corporation and Commissioners.

By the Court.-HOFFMAN, J.-The motion before me is for an injunetion against the defendants, to restrain them from proceeding with or executing the work, or any part thereof, or from asserting or using any right or privilege under a certain resolution or estimate set forth, or from interfering with the pavement of either of the streets mentioned; and that the plaintiffs may be declared entitled to a contract from the Corporation for the paving of Grand street and Fulton street within certain limits; and that the contract with Cooke and Catlin for such pavement be deemed illegal and void.

The facts material to the questions, and now appearing on the papers, are as follows:

Notice was advertised by the Commissioners of Repairs and Supplies in the usual manner, for proposals to be made for the paving of certain portions of Fulton street and Grand street, under a resolution of the 28th of October, 1852.

On the 1st of November, 1853, the proposals were opened. The proposals of the defendants, Cooke and Catlin, were to do the work at $2.98 a yard, and those of the plaintiff, at $3 à superficial yard. Many other estimates were made; but these were the two lowest. The proposal of these defendants was made and signed George Cooke & Co. only-and only one person signed the accompanying consent to be bound, that the applicants should fulfil their contract, if awarded to them, and would pay

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N. Y. Sup. Court.-H. P. Russ and G. W. Reed agt. The Mayor and others of N. Y. any loss to arise, in case, by their refusal to contract, the work should be awarded to the next lowest bidder.

On the 16th of November, notice having been given of the defects, the defendants gave a written notice of the name of the firms, with an affidavit of Cooke & Catlin being all the parties interested. They also left a written consent of another person to become the surety, with an affidavit of competency; and it is sworn that he had before agreed to become such.

The Commissioners of Repairs and Supplies, on the 15th of November, had taken the opinion of the Counsel of the Corporation upon the character of these defects, and were advised by him that they were matters of substance, and not merely of form.

In pursuance of this advice (as it is presumed) they addressed a communication to the Common Council, setting forth all the facts, and submitting the matter to their consideration.

On the 16th of November, the Board of Assistants adopted a resolution that the contract be awarded to the defendants, Cooke and Catlin. This was passed by the Board of Aldermen on the 18th, and was approved by the Mayor on the 30th of November.

The contract was signed, and these defendants have commenced, and are actively engaged in carrying on the work.

The conditions to be complied with on making a proposal, as contained in the ordinances, are printed; and the undertaking of the sureties, as well as particulars, are contained on the estimate furnished the applicants, to be signed and submitted by them, and purports to be extracted from the ordinances.

That which relates to the engagement of sureties is to the following effect "In consideration of the premises and of one dollar, the undersigned agree, that if the contract be awarded to the person or persons making the estimate, we will become bound as his sureties for its faithful performance; and if he shall omit or refuse to execute the contract, if so awarded, we will pay to the Mayor, &c., any difference between the sum to which such person would be entitled upon the completion of such contract, and that which the said Mayor, &c., may be obliged to pay to the next highest bidder to whom the contract may be awarded."

The plaintiffs state that their proposal was made in strict conformity with the requirements of the ordinances; and there is nothing to contradict the assertion.

My opinion upon the various questions which have been raised upon this state of facts, is contained in the following propositions:

1. The statute of April 12, 1853, to amend the charter, has not repealed the ordinances of 1849, adopted under the charter of April 2d, 1849. All these ordinances remain in force, unless any one of them, or a part of any one, is inconsistent with the act of 1853. I find no inconsistency as to any ordinance applicable to the present case. I think the 12th section of the statute is compatible with them.

2. Under the 23d section of the act of 1849, contracts made by authority of the Common Council for work to be done, shall be made by the appropriate heads of Departments, under such regulations as shall be established by ordinances.