OLEVELAND, 0., O. & I. BY.
CO.
V. U'OLUNG.
905
CLEVELAND,
C., C. & 1. Ry. CO.
f'.
MCCLUNG.-
(Cirouit OMVrt, S.D. Ohio, W. D.
March 16, 1888.)
L
CoLLECTOR OF ("'uBTOMB-RECEIPT OF FREIGHT ON BONDED MERCHANDISE-ACT OF JUNE 10,1880.
It is not the official duty of a collector of customs to receive the freights due to carriers for transportation of merchan,dise in bond, in pursuance of the act of June 10, 1880; but if the collector agrees to receive such freight in lieu of giving notice to the carrier, as required by the statute, before delivering the goods to consignees, he would be liable for any amount so received for the use of the carrier. I. SAME-WHEN LIABLE FOR ACTS OF DEPUTY. The receipt of such freights not being an official duty, a deputy could not render the collector liabll! for his acts by reason simply of his official relation to his superior. The collector would not be liable for freights by a deputy unleBB he had in some way authorized his deputy so to act, or unless he .had so acted as to estop him from denying that the deputy was, in the matter complained of, acting by his authority for him. ·· SAME.
If the colle«tor knew that his deputy was receiving the freight due· to the carrier, and permitted the carrier to receive the treight through his deputy in the belief that he was acting for him, or by his acts or declarations held out his deputy as his agent in the matter to receive the freight due to the carrie·r, in lieu of the notice required by the statute, he would be liable to the carrier for any amount so paid to the deputy. &. COLLECTOR OF CUSTOMS-FREIGHT ON BONDED MEROHANDISE-WHEN NOT LIABLE FOR FAILURE TO GIVE NOTICE TO CARRIER.
The plaintiff, not having alleged that the freight is unpaid, but, <;In the contrary, having alleged payment of the freight for his use and sued for its recov. ery, the· carrier cannot recover damages by reason of the failure of·the collector to give notice before delivering the merchandise to the consignees.
At Law. Stallo Kittredge and Ramsey Matthews, for plaintiff. Olulnning Richards, U. S. Atty., and Henry Hooper, Asst. U. S. Atty., for defendant. BAXTER, J., (charging jury.) The act of congress of June 10, 1880, entitled "An aot to amend the statutes in relation to immediate transportation of dutiable goods, and for other purposes," authorizes and _provides for the transportation of suoh goods from the ports into whioh they are first brought to the several oities mentioned in the aot, where the duties levied by law are to be asoertained and paid. It authorizes the delivery of suoh merohandise for transportation to some oarrier designated by the seoretary of the trelLsury. The same is to be. transported in fastened oars, vessels, or vehioles.· under the «Reported by J. C. Harper, Esq.· of the Cincinnati bar. Affirmed. See '7 Sup. Ct. Rep. 262.
906
FEDERAL REPORTER.
exclusive corArol of the officers of customs, and not to be un· loaded or trftushipped in transitu unless authorized by the treasury regulations. 'And whenever the proper officer of customs shall be duly notified in writing of the existence of a lien in favor of the carrier, for freight qpon the goods so transported and in his custody, he is required, "before delivering them to the consignee or owner," to give seasonable notice to the party or parties claiming the lien, and such officer may. refuse to deliver the same from any public or bonded warehouse, or other place ,in which they are deposited, until proof shall be made to his satisfaction that the freight thereon has been paid. Such are the provisions of the statute so far as they are material and pertinent to the issues to be passed upon in this action. The plaintiff, in stating its oauses of complaint, says that the defendant was, at the several times stated, collector of oustoms and sur· veyor of this port, and that it was a carrier designated by the secre· tary of the treasury, and authorized to transport dutiable goods under and pursuant thereto; that as such carrier, so authorized, it transported dutiable goods from the port or ports at which they first ar· rived to this port, for which the several amounts alleged are due to it; and that said goods were, on their arrival in thisoity, placed in defendant's custody and under bis control as collector and surveyor; and that it duly notified him in writing of the existence of its lien thereon for transporting the same, as provided by said act. And the plaintiff then avers that it became llind was defendant's duty to reo fuse to deliver goods until the so due to it was paid. ' It then proceeds to charge that the said several consignees and owners of said goods paid to the defendant the several sums so due to it for freight, for its accpunt" and benefit, and then and thereupon caused said goods to be' delivered to the· consignees without notice to the for such freight was lost. It then says that plaintiff, wh'ereby the defendant, though often requested, has not' paid said sums. or either or any part of either of tham,'hut that the same and every part thereof, with interest thereupon from September 8, 18S1, remains due and unpaid, for which itdemands judgment. The defendant admits that he was surveyor and collector of this port, as charged, and concedes that the goods were carried by tiff,piaced in his Cllstodjarid under his control, and delivered, with. out notice to plaintiff, to the consignees, as is alleged. But he denies that he was notified in otherwise, of plainiiff'slien for freight; or that' it became his duty not to deliver said goods until the freight due the plaintiff thereon 'was paid ; and he denies that he
OLEVELAND, 0., C. & I. BY. CO. V. M'OLUNG.
907
ever received for the account or benefit of the plaintiff, the freight due for the carriage of said goods and sued for in this action. Such are the issues made by the pleadings, and presented for your consid· eration and determination. The responsibility, gentlemen, of taining and deciding upon the facts, devolves on you. The COlli· plainant has adduced evidence to show that, upon the arrival of the goods at this port, it made, or caused to be made, memoranda, describing the goods so carried by it, the consigneeI'! for whom it was brought, the place from where shipped, and the amount due thereon for freight, and filed the same in defendant's public office with his recognized deputy. It then adduces evidence tending to establish that such memoranda was intended as a written notice of its lien for freight, and that by a long and nniform course of dealing between it and the defendant's office, the same was recognized, received, and accepted by defendant's said deputy as a sufficient notice, under the statute, of the existence of plaintiff's lien for freight and its claim therefor. It further appears in evidence, and the fact is not denied by the that in accordance with a custom prevailing at the custom-office at this place for eight or ten years preceding the transactions involved herein, the consignees paid the freight due to the plaintiffs to defendant's deputy; that such payments were exacted and required as a precedent condition to the delivery of such. goods, and that the deputy accounted with and paid the same to the plaintiff from time to time as the same was demanded. Such payments were made for the freight due plaintiff, and sued for herein, to defendant's said deputy, sometimes in money, but most generally in checks, including duties due to the government and freight due to the plaintiff, drawn by the consignees in favor of defendant, or of the "collector" or "surveyor" of the customs of tilis port, which were indorsed by defendant, by his said deputy, in his official capacity, and collected in the usual course of business; and that, upon the receipt of such money or checks, as stated, in payment of duties and freights, the goods were, by the orders of said deputy and the acquiescenceor defendant, delive!;ed to the respective consignees; but that neither defendant nor his deputy has accouhted with or paid to the plaintiff the amounts so collected for it, or any part thereof. Upon these facts the plaintiff contends that it was dealing with the defendant, the surveyor and collector of customs, through his authorized deputy and agent, and that the amounts so paid to and accepted by said deputy were, and are, in law and in fact, a payment to and receipt by defendant, and that it is entitled to a recovery therefor, as
90s
for money had and received by defendant for its use. But if the jury shall find that the payments made to and received by the deputy were for any reason not payments to or receipt by defendant, and that the defendant is not liable therefor, then and in that event it insists that such receipt and acceptance of said payments by said deputy were nnauthorized by it, that said payments were invalid; and that the defendant, in violation of the duty imposed on him by the law, wrongflllly delivered said goods before the payment of the amounts due it for freight were paid and without the seasonable notice to plaintiff of the deliveries to be made, whereby it lost its lien therefor, and that it is entitled to reGover from defendant the damages resulting from and sustained by it in consequence of defendant's failure to give the notice required by the statute. That is, the plaintiff contends, that if it is not entitled to recover for money had and received, as already stated, then it can recover for the failure on the part of defendant to give the notioe required by law of his inten· tion to deliver said goods, so that plaintiff could have taken legal and proper steps to have retained and enforced its lien thereon, and in that way secured payment of the freight due it for their transportation. Let us now consider these propositions separately, and in doing this, it will, I think, best subserve the ends of justice to dispose of the last proposition first. The duty of defendant, under the statute, to give seasonable notiae to the carrier before delivering goods to owners or consignees, comes only when he has been duly notified in writing by the carrier of the existence of a lien for freight; the object of such notiae if:l to enable the to interpose, and assert, and enforce the lien, as a means of securing payment of the freight. It. follows, if no such np.tic.e· by law has been served on defendant, 9r if.it has"that the freight charged for the carriage of such goods ;have been paid, the defendant was under no legal duty to notify the plaintiff oihis intention to deliver the goods to the oonsignees; and as he, was under. no obligation tire he is guilty of no official dereliction in not giving it, and liable to no damages for such alleglld neglect.. Hence,the plaintiff alleged that it had duly notified defendant, in accordance with the law, of the existen!le of its. lien, and tpedefendant as obstinatelydenieil. the allegation. This is the issue llll:!de by .the pleading. upon thetriaJ both agree that :the mem,oranda hitherto mentioned a;nd read in evidence were lodged 9Y thf? plaintiff with defendant's deputy, at defendant's office, and
CLEVELAND, O.,'C. & I. BY. 00. V. M'CLUNG.
909
up<Jll this concession the controversy takes a modifled form,-the plaintiff contending that such were'good, sufficient notices, while the defendant insists they are not the notices required by law, and thateonsequently they do not, in connection with the statute, impose any legal duty whatever upon defendant. Whether these memoranda are or are not per 8e such a notice as is prescribed by the statute, is a question of law, to be decided by the court. This and other legal questions as to how far, if at all, the defendant is liable for the acts of his deputy, have been very fully discussed pro and con in the argument, and if a decision of them, or of anyone or more of them, were directly or remotely necessary to a correct determination of this suit, the court would instruct you in relation thereto. But these several questions are not involved in this controversy: Our duty is to consider and try the case made by the p'laintiff's petition. In order to a.uthorize a recovery against defendant for failing to give him the seasonable notice required by the before delivering the goods to the owners or consignees, there must' be an averment that the freights due it; and for which it had a lien, were owing and unpaid; for if the freights had been paid, the plaintiff's lien thereon would be extinguished, and defendant relieved of the statutory injunction to give the notice. There is no such a.verl1lent in the plaintiff's petition in this case. On the contrary it distinctly avers that the cOllsignees did pay the freight to the defendant; &Iid,while it does not say in express terms that it auihorized such payments to be made, by demanding and suing for the saine, as it has been:d:On'e; it ratifies and confirms the payments, andclail1ls that thetnoney was received for its account and benefit, arid demands judgment therefor. .This is in fact the gravamen of its complaint-the theory upon whichits suit rests. Upon these averments and the legal con;seqilences therefrom', the court instructs you that we will have to try this caSe upon the hypothesis that thefreiglit'aue" from the consignees to the plaintiff, for the carriage of the goods in question, was paid hefore the goods were delivered by defendant to the consignees;; and that defendant was, therefore, under no legal duty to 'give plitlIlti1f nbtice of his intention to'make such' deliveries. The plainti:tt:wity rifltbe permitted,after averring paynient6f the freigllts, 'as it --done, to recover defendant' failed to giveitndtice of its no necessity t<Y pass intended deliveries. For this reason there upon the question as to the 'legal sufficiency of thealleged'ndiioe from the plaintiff to the defendant, of the existence ofitslien','orfpr:the court to express any opinion upon the numerou's ,qriestidtllf
is'
910
REPORTER.
been made and discussed in regard to the extent of defendant's liability for the act of his deputy. may all be considered as eliminated from the case. The vital question to be considered is one of fact to be decided by you, to-wit: Did the consignees, or anyone or more of them, pay the freights due the plaintiff, or any part of it, to the defendant, for the account and benefit of the plaintiff? ,If such payments were made, to recover the amounts thereof, with interest, the plaintiff is in this actioI), and you ought to so find. As it has been already sta,ted, the plaintiff does not contend that such payments were made to defendant personally. The contention is that the payments were made to his (defendant's) deputy, under such circumstances as, in legal contemplation, makes them payments to the defendant. On the other pand, the defendant admits that the payments of the freights were made to and accepted by his deputy, and that the same have not been accounted for or paid by the deputy to the plaintiff.' But he denies that he ever hil:l deputy to act for him in the premises, and insists that h(3 is not in law liable to the plaintiff for any part of the freight so collected by his subordinate. Thus the controversy is still further narr{)wed down toan inquiry as to whether the deputy, in the mentioned, acted ,by express or implied authorseveral ity as d,efendant's agent in the matter, or under such circumstances as would in law estop defendant fro:m asserting the contrary. Tpe courtipstructs you. that the defendant, as collector and surveyor of tbjsport, wa.s .under no legal duty to collect freights due to the plaid!if,f. Th 43 Jaw simply required bin, wh&n duly served with notice by, the .carrier of the existence of a lien upon the goods in bond for freight, to give the carrier seasonable notjce. before delivering the goods in his custody and under his control to the owners or to the consignees, a.nd imposed on him the duty to withhold delivery until satisfactory proof wa.s furnished that freight had been paid. It was competent for the parties by express contra.ct or a tacit understanding, resulting fro:m an established course of business, for the benefit and.conven,ience of both parties, .to agree that a collector and veyor, might receive the freights due the carrier for account of the latter,and upon receipt thereof to deliver the goods to theowners or consignees" and that auch receipt of the, freight by .him be in lieu of the notice which the law required4im t<? give the carrier in the contingency. prescribed by the statute j and it may be that such tacit or agreement existed between these parties in this cl;tse. This i a the ,question for your determination. The defendant was un-
c.;
C. &' I.' BY. CO. V. M'CLUNG.
911
der no 'official' legal to uildertaketo thus act for the plaintiff. If he did sohe'was btltacting in his private <lapacity, and not in the discharge of any official duty. It not being an, official duty, his deputy could not thus act by reason simply of hig .official relation to his superior, and defendant would not be liable for such extra-official action unless he had in some way authorized his deputy so to act, or unless he has so acted as to estop him from denying that the deputy was, in specifill: matters complained of, acting by his authority for him. This is the question of fact, referred to you. The plaintiff has made no effort to prove express, authority from the defendant to , deputy to act as his agent in the collection of freights due to it. 'But it has proven that the deputy had been such collections for several years prior to defendant's induction into the offices of 001lector and surveyor, in March, 1881, and continued to do so tilt his:: dismission in September following. Ithlts been said thap such,was the regular course of business in the office for 10 years, recognized and acquiesced in by the plaintiifand the importers. If dMendant had knowledge of this custom, acquired from observation, ftom the bUS4J iness and books of his office, or through other sourdelr, and'.acquiesced therein and permitted the plaintiff to make itscolledions throhgh his deputy, in the bellef that he WaiS aicting for and as di!fendant's agent, or by his acts or or held:hirn: oUkas'nisr agent in the matter, the plaintiff and 'defendant both understa.nding and tacitly or otherwise agreeing that the freights due':, the :plaintiff:' should be paid in-this way hilien of the 'notice whi4h the statute in the contingency prescribed, requited the defendant, as collector, to give to the plaintiff, and which has been fully explained, he would be liahle to the plltiiltiff for all:sutns so paid to the deputy for the plain.' · tifrs use, and claimed in its petition,'withinterest, and you ought so to find. But if the deputy acted without authority from-defendant, and the defendant did nob know of his said action, nor hold him out" to the plaintiff as his agent, rior or say anything to mislead the: plaintiff or its officers or agents, nor undertake or assume to collect:, plaintiff's freight,he would not be liable to plaintiff's and, your verdict ought· to be in his favor. It -is for you to ltscertl\in how this fact is. I have not attempted to recite all the evidence produced: and, relied on hy,the parties" bttt'it is all submittelMo1" yonr' .consideration; . It is your duty to give to it, and to each and every pali of it, just such weight as in yourjnogment onght to be given to'
do
912
guided by the principles of law given you in this charge, work out your own conclusions and report the result, in the form of a verdict, to the court. Verdict for defendant.
it, and
In re McKINNEY, Bankrupt. (District Oourt, W. D. Penru1lZvania. April, 1883.)
1.
BANKRUPTCy-TRUST ESTATE-LAPSE OF TIME AS A BAR.
Mer!, lapse of time will not l""r a claim against a trust estate, and In fullUfe when the trust was created, so long as the estate is unadministered lind the trust subsists. 2. OF LIMITATIONS.
The statute of limitations is no bar to proof in hankruptcy if It llad not run against the claim at the commbncement of the proceedings in bankruptcy.
In Bankruptcy. Sur exceptions to the register's report upon the claim. of H. Oppenheimer. KnoiJJ et Ree(t, .for. exceptants. Levi Bird Duff, contra. ACHESON, J. The adjudication in bankruptcy was on October 21, 1872, upon a petition filed September 28, 1872. The bankrupt's note bears date September 25, 1872, and was due 60 days thereafter. The tender of proof upon the note was made December 29, 1879. The period of limitation under the Pennsylvania statute is six years. It thus appears that more than the statutory period had run after the adjudiction, and after the maturity of the note, before the proof of debt thereon was tendered. It is a Pennsylvania contract and the parties thereto reside in this state. Is the statute of limitations a bar to the proof? The exceptants contend tbat it is, and they rely upon tbe decision of Judge DEADY, in Nicholas v. Murray, 5 Sawy. 320, who beld that tbe statute of limitations of the state where the debtor is adjudged a bankrupt continues to run, after adjudication, creditors. But the contrary has been determined, and I think with better reason, by Judge HUGHES, in Re Eldridge, 12 N. B. R. 540, and by Judge BRADFORD, in Re Graves, 9 FED. REP. 816. The latter cases are in accord with the English rule that the. issuing ofa commission in bankruptcy creates a trust for creditors against which the statute of limitations does not run. Ex parte Ross, 4 Glyn