The question of practice involved in this review need not be considered because the claimant -does not press the point and unites with the government in asking that the issue be determined on its merits. In his brief he says;
“He would welcome the final determination of the status of the general order goods, which have been in the government custody for a period ap-. proaching two years and necessarily have greatly deteriorated in condition.”
- There is no dispute upon the evidence, all the relevant facts are before the court and it is for the interest of both parties that the question be determined without further delay.
The contention on the part of the government is that the goods of a consignee against whom no charge of wrongdoing is made may be forfeited because of the fraud and undervaluation of the consignor, before they have entered into the commerce of the United States. It is not alleged that Castillo, the claimant and consignee, participated in or knew of the alleged false invoice. The parties charged' with making the false and fraudulent invoice in a foreign country are the “consignors and sellers.” Because of their fraud it is contended that the goods may be forfeited the moment they arrive in the United States and before they are entered or an attempt to enter them is made.
The statute under which this proceeding is instituted is penal in character and must be strictly construed. It is necessary for the government to- prove that the goods were entered, or an attempt made to enter them, by means of a fraudulent or false invoice, affidavit, etc. There is no such proof. They have not been entered nor has any attempt been made to enter them.
They were subject to “general order,” which the courts have defined as “an order whereby the collector allows the unlading of the goods and takes possession of them before entry of them is made by the individual owners or consignees.” The Egypt (D. C.) 25 Fed. 320, at page 332. Until entry is actually made or attempted, the stat*441Ut.e is inapplicable. The only goods here concerned were in “general older” and had not been entered when this suit was commenced.
The condition precedent to a forfeiture, viz., the entry or the attempt to enter, did not exist. The merchandise has never been introduced “into the commerce of the United States.” It is not enough that it was brought within the jurisdiction of the United States. No presumption of an intent to enter can be predicated of that fact. It may well be that the owner of such merchandise, after holding it in “general order” until he can ascertain where the best market can be found, intends to ship it to a foreign country.
The undisputed fact that the merchandise was not entered and that no attempt to enter it into the commerce of the United States is sufficient to justify the dismissal of the libel as to Schedule B.
The entire case was carefully considered by Judge Hough and nothing further need be added to his opinion.
The order is affirmed.