Page:Federal Reporter, 1st Series, Volume 8.djvu/500

486 PEDERAIi EEPOBTEE. �contumaey and default, and thereupon the libel shall be adjudged to be taken pro confessa against Mm, and the court shall proceed to hear the cause ex parte, and adjudge thereon as to law and justice shall appertain." �This was the course taken by the court in this case, and upon such hearing the libel was dismissed. Conceding that the averments of the libel make a case for a decree of forfeiture, the "proofs" may, for all that appears, have negatived thofee averments. If so, both law and justice should require that the libel be dismissed. AU presump- tions are in favor of the decree of the court. It is, therefore, impos- sible for this court tosay that the district court, erred, unless we have the evidence on which that court based its decree. The record does not disclose that evidence. �But does the libel suggest such a case as would justify a forfeiture ? By section 16 of the act approved June 22, 1874, (18 St. 189,) it is provided that — �" In all actions, suits, and proceedings in any court of the United States now pending, or hereafter commenced or prosecuted, to enforce or declare the for- feiture of any goods, wares, or merchandise * * * by reason of any vio- lation of the provisions of the customs revenue laws, or any of such provisions in which said action or proceedlng an issue or issues of fact shall have been joined; it shall be the duty of the court, on the trial thereof, to submit to the jury, as a distinct and separate proposition, whether the alleged acts were done with an actual intention to defraud the United States, and to require, upon such proposition, a special finding by such jury; or, if such issue be tried by the court without a jury, it shall be the duty of the court to pass upon and decide such proposition as a distinct and separate finding of fact ; and in such cases, unless intent to defraud be so found, no fine, penalty, or forfeiture shall be imposed." �I think it perfectly clear that this section makes intent to defraud the United States a necessary condition to the forfeiture of any goods, etc., for the violation of the customs revenue laws. A libel of information, therefore, which undertakes to state a case for the for- feiture of goods, .should aver an intent to defraud the United States. Without such averment no case for forfeiture is made. The claim- ant might well decline to answer a libel in which such averment was wanting, trusting to the court to dismiss the libel, for want of neces- sary averments, when it came to hear the case ex parte, and to adjudge thereon "as to law and justice should appertain." The idea that a libel would be good when there was dcfault for want of an answer which would be bad, if an answer were filed and issue joined, is certainly untenable. The libel must set up all the facts necessary ��� �