From William Bradford1
Philadelphia, February 7th. 1794.
I have considered the letter from the Collector of Newport2 inclosed in yours3 which I received yesterday, and the questions which he states as arising upon the proviso to the 66§. of the Collection Act passed on the 4th August, 1790,4 and I am of opinion.
That a capias or attachment issued within three years after the penalty of forfeiture was incurred, and returned by the proper officer, is a legal commencement of an action within the meaning of the said proviso, and may be replied to the plea of the limitation, although the return should be, to the former, non est inventus, or to the latter, that neither body nor goods are to be found.
I am also of opinion that upon such return being made, writs may successively issue against the person forfeiting, until a service be made: but I do not hold this to be necessary to take the case out of the proviso, because the first writ being a legal commencement of the suit, the subsequent prosecution of it is not considered as a new action. However, to avoid any operation of those cases where, the action having abated the Judges held that it ought to be renewed within a year, it may be advisable (though I do not think it necessary) to repeat such process at least once in a twelvemonth.
I have the honor to be with great respect, Sir, Your most obedient servant,
The Secretary of the Treasury.
Copy, RG 26, Collector of Customs at Boston, Letters from the Treasury, 1789–1818, Vol. 5, National Archives; copy, Circulars of the Treasury Department, 1789–1814, Library of Congress; copy, Office of the Secretary, United States Treasury Department.
1. When Bradford was appointed Attorney General of the United States on January 27, 1794, he was one of the most prominent members of the Pennsylvania bar. A son-in-law of Elias Boudinot, he had served as state attorney general for eleven years and after August 22, 1791, as justice of the Pennsylvania Supreme Court.
3. Letter not found.
4. Bradford is referring to the second provision of 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,” which reads as follows: “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 Stat. description begins The Public Statutes at Large of the United States of America (Boston, 1845). description ends 177). For an explanation of the mistake in the numbering of this act, see “Treasury Department Circular to the Collectors of the Customs,” August 6, 1792.
Bradford’s opinion was sent to the collectors of customs on April 24, 1794, enclosed in a circular from the comptroller’s office (LS, signed by Oliver Wolcott, Jr., Office of the Secretary, United States Treasury Department).