From William Ellery
Colles Offe. [Newport, Rhode Island] Dece. 2nd 1793
The last proviso of Sec: 66 of the Colln. Law runs thus “And provided, That no action or prosecution shall be maintained in any case under this Act; unless the same shall have been commenced within three years next after the penalty of forfeiture was incurred.”1 On this proviso questions have arisen, concerng. which I request your opinion.
1st. Whether the issuing a Writ within three years next after the penalty of forfeiture was incurred, would be a commencement of an Action or prosecution, although the Writ should be returned non est, or, in case of a direction on the back of the Writ to attach to any value, the Writ should be returned neither body nor goods to be found?
2. Whether if a Writ being so issued and returned be a commt. of the action or prosecution, Writs may not be successively issued against the person who has incurred the penalty until a service shall have been made?
By Stat: 21. James chap 16.13.,2 introduced into this State, all Actions of the case &c. shall be brought within six years next after the cause of such actions or suits and not after. Upon this Statute the construction has been that by bringing a Writ within the six years, and upon its being returned non est, the bringing another within six years next after the purchase of the first, and so on, the demand may be kept alive until a writ shall be served.
If a construction like this should not be put upon the cited Proviso, the penalty incurred may be avoided; for the Collector may not be informed of the transgression of Law until the three years shall have nearly expired, and then the transgressor may be at Sea and so continue until three years from the time the penalty was incurred shall have run out as is the case of Samuel Slocum who was master of the Brig Enterprize which is seized at New york, and about which I wrote you on the 26th. of last August. I issued a Writ against him before the three years had expired, and directed the Marshall to attach to any value. He returned the Writ neither the body nor the goods & chattels of the within Samuel Slocum to be by me found within this District. Or the transgressor may abscond, or conceal himself as Samuel Townsend, Master, and Samuel Pitman mate of the Schooner Hannah are said to have done. Against each of them I have issued Writs with similar directions, which I expect will be returned in the same manner. Of my seizure of the said Schooner I informed you in my letter of the 11th of the last month. Imaginining that if no service of the Writ is made before the expiration of the three years they shall be safe they abscond or conceal themselves and they place their attachable property out of the reach of the Marshall. I have consulted Pierpont Edwards the District Atto. for the District of Connecticut and it is his opinion that if a writ issues within three years next after the penalty was incurred, and is returned non est or neither goods, nor chattels to be found, it is a commencement of the Action or prosecution according to the meaning of the Proviso, and that thereafter writs may be issued against the transgressor until a service shall be made.
The form of the Writ prescribed by the Law of this State commands the Sheriff &c to arrest the body 3 and for want of the body to attach goods & chattels and or them in safe custody to keep &c &c. and a Law of this State enacts that “where the Plt. or his Atty shall by writing on the back of such Writ give order to attach to any value or to a small value: And where an attachment shall be made in consequence of such order the same shall be sufficient to bring the cause to trial.” As early an answer to this letter as you can make convenient is desired4 by
Sir, Yr. most obedt. servant
Wm Ellery Colle
A Hamilton Esqe.
LS, Newport Historical Society, Newport, Rhode Island; copy, Bank of New York, New York City.
1. Ellery is actually referring to Section 67 of “An Act to provide more effectually for the collection of the duties imposed by law on goods, wares and merchandise imported into the United States, and on the tonnage of ships or vessels” (1 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 176–77 [August 4, 1790]). For an explanation of the mistake in the numbering of the sections of this act, see “Treasury Department Circular to the Collectors of the Customs,” August 6, 1792.
2. Ellery is referring to 21 James I, C. 16 (1623).
3. This and subsequent spaces left blank in MS.
4. Ellery endorsed the letter book copy of this letter as follows: “Answered by Atto. General in his letter to Secry Treasury dated Feby. 7 1794, transmd. by Comptroller Apl. 24 1794.”