n:DERAL RE;PORTER,
vol. 45.
and .intervene to obtain the. proper relief, and to assert such priority of lien as. the laws of the state respecting attachments permit. The principle sustaining the law., as .above expressed,is, in my opinion, clearly asserted in Patterson v,Btephen80tl,77 Mo. 329; Gumblev. Pitkin, 124 U. S. 131,8 Sup. Ct. Rep. 379; and Bate8 v. Days,.s McCrary, 342, 17 Fed. Rep. 167. " . The motion to quash' the levy will be overruled·.
.' .TOHN SHILLITO.
ldCCI,."ONG,. Collector of Customs.
(Circuit Po:un, 8. D. 1
0¥O. w. D.,
April 21>, 1891.)
t. SutE-I'LJi:ADI:No-:DJilPABTtlttll. '7
Under'Rev·.St.U. B; 5 regu,iring an .l!oCtion for the eltCe!l!l ()f customs duties to 'be within 90 flay II after the deci!lion of the appeal froDi·th& collector by the secretary of the treasury, it is not the duty of the collector to hdorm. the olaimant of the appeal by tpe secretary, and the , t.hatthe oollector, by.his silence, leads suppose that the appeal haS not 'been acted on, wh'eli in fact it has been decided, does not estop the collector' , 'fromett1Dg up tb.e OO,d-.yJbnitation ,to a euitby the cla\ml)Dt to reoover the excess ,," .' '.', . i. WherU.$ueh suit the answer alleges that the appeal was decided :more than 90 da,Y"" Pef:qrEI the. Buit ,brQught, a reply setting up tb.&,t th,e collectol' is esto.pped .fr.ompleaqing the lImltation because' ot bis silence and fallure to inform plamtUr that the :appeal had been .deoided is Doll&. departure from the petition, whioh aldeoided,before the suit was brought. leged that, the:..ppeall1&4l1ot. Mattel'S ofeBto'ppel tn' pail may be iet up in OOtiODS at la.w as well as in suits in equity., :1·'
To RECOVIlR
EXOBSS",;A.PPEAL PRt»)( COLLEOTO_EsTOPPJ:L.
3. E8TOPPE,t.::-ACTION';AT I.,Aw""
,"
".'
;::
,
;IIenriJ S.\GE,Jor; 'rhis· for the;J'ecove:ry
for defend,llnt.
at law under section 3011, Rev. St. U. ofc\1stoms dutieE! claimed to have been froJ;n:the plaintiff company, and paid by it under protest. The petition that the appeal rp,quired by section 2931 . of the Revised Statutes had been duly made, but not decided by the secret&J:y,·of the treasu.ry:upto; the titnethat suit was brought. The anSl1P.8r this allegatioI;l" ijnd alleges that the appeal was decided more than the was brought, and on that ground'alone. , ,.:u; '£he second amended, reply. alleges certain cond\1ct, and afterwardssi. his quty, tOi speak, on the part of defendant, whereby plaintiff to ,its, prejudicf\ ,in not discovering that said decision had been madeu»til aftl:1'f the bringing of tbeaction. The praye.: u.pon these allegations is that the defendant be estopped from denyingtbat said decision had not been made.
JOHN SHILLI'rO CO.V. ltt'ci.UNG.
779
To this reply defendant has demurred igetleraUy for insufficiency, arid also specially, on the ground 'that the reply, sets up,in il:n action at law, matters of equitable second ground of demurrer it may be remarked at once that the 'doctrine that matters of estoppel in.pais or by conduct may be set up and will be recognized in actions at law' has been affirmed by the' supreme court of the United States in Insurance Co. v. Eggle8tan, 96 U. S. 572; Daniels v. Tearney, 102 U. S. 415; Insurance Co. v. DOM, 106 U. S. 30, 1 Sup. Ct. Rep. 118; and Bankv. Morgan, 117 U. S. 96, 6 Sup. Ct. Rep. 657 .· Under section 2931 of the Revised Statutes the plaintiff must show; as a condition precedent to his right to maintain the action, that not only was there due protest and appeal 'to the secretary of the treasury, but also that action was broughtwithin 90 days after:the decision upon such appeal. In this case there was a protest and appeal to the secretary of the treasury on the 4th of October, 1881. This action was commenced on the 26th of December, 1882. About the 2d of November, 1881, the defendant informed the plaintiff that the!lecretary of the treasury had declined to entertain ,the appeal, on the ground that thepr6test therein had. nothean filed withinthetime'required by law. About December 4, 1881, defendant informed the plaintiff that the secretary of the treasury had, on account of its having appeared from the second report of about the 8th of November, 1881, madlt by the defendant to the secretary, that the defendant's original report was erroneous in stating that the protest was not filed within 10 days after liquidation, revoked his action as to the said appeal and as to two other appeals made by the plaintiff at the same time and rejected upon like grounds, and haddecidedeaid two other appeals, but that, on account of its still appearing to. the secretary from said second report that as to the nppeal set up in the petition protl'sthad not been filed within .10:days aller liqliidation, the secretary did not sider any further action in regard to the same necessllry. It further appears from the reply that, thereupon. without the edge or reqnest of the plaintiff, and without informing the· plaintiff,. the' defendant made such further representations and reports to the secretary that he was .convinced that said. protest· had been' duly filed,and thera-: upon, that is to say, on. the 10th day of December, 1881, revoked hilJ aotion in refusing to entertain the appeal, and decided!:it by affirming the assessment of duties as malie by .thedefendant. ' The plaintiff further sets up in his ,reply that the defendant did 'not, until thiS' action was brought, inform: 'the plaintiff 1(:)( said decisim.I, although the plaintiff, during the wholg period oftheconsideration of said appeal,was, by its agent duly authorized in the premises, daily in,the defendant's office, transacting business with; the defendant in· respect to other similar protests and apljeals; and: of said time' the plaintiff: was igm:>rant.Of saiddecisioni and relied' wholly upon said: by the, defendant. on !the: one 'hand; and '·saidsilenc&'on' the other', as being anassul1lnce·ro the' plaintiff that. the limitation 'd{eO days; :setfnpin the ansWer,had, notb'egtm to run against the claim URifrthtl;..petition, Wherefore the plalntitf.nlleges that in rnaintairiihg'
780
FEDERAL REl'ORTER.
said silence after said representation and conduct defendant was grossly I\egHgent of the rights of the plaintiff, and that it was. solely on account tpereof that the plaintiff.did not·bring.this action within 90 days after the rendering of said ,decision. In Arnson v. Murphy, 115 U. S. 579, 6 Sup. Ct. Rep. 185, the supre;me court decided that there was nothing in the statute requiring that the decision on the appeal should be communicated to the claimant by any action of the officers of the government. The court say that all. that the statute requires is that the secretary shall make the decision, and that it is to be made in the usual way in which the decisions of the department are made. This amounts to a statement that failure of the officellsQf the government to make the decision known to the claimant is not fI. lleglect of duty on: their part. But counsel urge thatthe court also in any case, it should appear that, on due inquiry of the properofficer,s, a party ht.td been misled to his prejudice in regard to a appeal,s dJfferent question would be presented." It is that the plaintiff in this case was misled to his very i\)ythe spence of the defendants. The entire contention for theplaillti:lf rests upon this proposition. If it be unsound there is nothipguppn, which to build an estoppel, or in any way to excuse the plaintiff's faUuire to bring its action within the time limited by the statute. The 8J'gument is that, cOllceding that ,there could be no recovery which because the' government may, after judgwould .biQdi the ment agltinst the defendant, assume. or· dtlcline to assume the payment thereof, the' action is to a certain extent personal, and therefore that there which would bind the defendant individually. But that cO,aldonly be upon its being made to appear that the defendant had some duty which waS owing by him, by virtue of his offiCj3,AQ the plaintiff. This conclusion brings us again to the decision in AmBon v. Murphy, that the officers of the government are not under any obligation tll communicate the decision on an appeal to the claimant whose rights are thereby passed upon. See, also, WeBtray v. U. S., 18 WalI.322, and Merrit v. (ll/m.eron,137 U. S.542, 11 Sup. Ct. Rep. 174. It wa.s not.! the official duty of the defendant to inform the secretary, after to act upon the appeal, :thathis finding that' protest had he had not' beep. m:ed within 10 :days. was erroneous. In communicating that information defendant was volunteer. If he had failed to commun,icate itt that failure would not have made him in any way liable to the plaintiff. The mtttter is therefore a.s if the secretary, upon the suggestion ;of a clerk in the treasury. department, or upon his own 000tioQ,. had reconsidered his action, and taken up the appeal and de, But it is urged that under the· peculiar circumstances-that is,fp the notificatiQn tdthe plaintiff that the secretary had declined· t9QOnsic;ler; the appeal'-there was a duty resting npon him, as welIas upon 1heidefendant, to inform the plaintiff of the secretary's subsequent· is that there was no duty resting upon the defendaction·. ". The ant to make that notification; and therefore no obligation can. be based uvon the that he did make it. As to the secretary, it nO,where ap-
JOHN SIt!LLITO
co.
'l1.
v'cL'uNd.
781
pears that he had any knowledge of it. And, further, it was the plaincourt in the cases tiff's business, undedherulings made by the above, to keep itself advised of the action of the secretary, just as it is the duty of a suitor to take notice of the proceedings· of the court. To create an estoppel by !\ilence there must be not only the opportunity the apparent duty to speak. It was held in Morgan v. Railroad Co., 96 U. S. 716, that an estoppel in paia always presupposes error on one side and fault or fraud on the other. In Andreae v. Redfield, 98 U. S. 225, where it was held that the action was in the nature of a suit against the United States, suit was. brought against the collectOr of customs for an alleged excess of duties. The collector pleaded the statute of limitations. Thereupon one of the claimants filed a bill setting forth that his attorney was informed by an officarof thecustom-hQuse that by the rules lUidpractice of the treasury departmentthepresentatioll of the claimto the auditor or refund clerk would prevent the statute of limitationsftofu running, alld that the statute, if the clairrui were soj>resented, could not and would not be interposed as l;l defense. The claimant, relying u:ron thesElstatements,did'so present his Claims, and rMrained from suing until the bar of the statute had attached, and: therefore prayed thatthe;cot:.. lector be Jrom pleading it, The court dedded that the mattets alleged Were not sufficient to estop the collector. In .Barton v. Railroad Co., 24Q. B. Div. 77, there was an appHcation to the company for It The company sent a letter to the holder· of the stOck giving her notice, and stating that unless heard ftom to the contrarY,the stbckwould betransferred. She did not answer the letter, and the stock transferred. Her signature to the tl'ltn$fer was a forgery. Held, that she was not estopped from alleging that the transfer was invalid. It is to be observed that the reply contains no avel'mE'nt of .anymisrep. resentation or misleading other than by silence, and· that the plaintiff was as silent as the defendant is alleged to have been. Moreover, alappeal was taken on the 4th of OctOber, 1881, and the 90 though days thereafter, when tle claim was ripe for suit,expiredJanuary2, 1882, the petition was not filed until· December'26, 1882, nearly a year aflerwardS. The cases above cited: and the considerations stated make it clearly appear that the defendant is not estopped to plead the statute' of limitations. . It was suggested upon the hearing of the' demurrer that the reply iss. departure from the case' stated intliepetition. That obje/)tioil is not welltakeri. The reply is germane to the plea of the statuteoflimitlitions. H:states the grounds upon 'which the plaintiff relies tc)avoid the bar of the statute. It in no wise seeks to change the caUse of :action stated in the petition,butonly to clear'8.wa.y the matter pleaded iubar by the defendant. The deDlUrrer will be 'sustainedl:
782
.PDERA-L .
,vCll. 45,...
..', UNITED S'l'ATES tJ. EARNSHAW.
(Distrf.ct OQurt,
s. D.,fle,.o
York. MQ.rch 31,1891.) .. : ,
' .. :.'
.:rhe ,collector 'baving ot customs !lases and t'be, appointment ot a proper appraiser, any objections to 'the. latter 'must be made ftrst, to the collector, and afterwards due protest and appealtnade to the secretary of the treasury under section 2931, in order. to entitle to raise suet!: object}ons as a defense when sued for the duties .as liquidalied, The I'E'cent cases' at U. S. v. Schlesinger, 120 U. 109, 7 Sup; Ct. Rep. 44:a,' and Oelbermann v. MeT'l"Ut, 123 U. S. 856, 8 Sup. Ct,Rep. 151, not changed the tj),rmer rille.
ANI> APPEAL NECESSARY TO DEFENSE-REV. ST. §- 2931.
TO RllOO'v'ER..;..OBJEOTION TO.A.PPRAISER'-:"PROTEST
S. Atty:, fOf defendant., ' ..
'Asst. u. S.
an ameJldment to the not touch the gro'\lndsupon which, on demurrer, the fQfmer was held insufficient.. See, opinion, 12 .Fed. Rep. 283. the den11jlrrer tothe,am,:mded answer the defendantclaimf! :that the d,claions Qnhe supremecourtin U. S. v. $chle8inger, aod Oelbermann v. Merrttt,123 U. S. ··151, have overruled the groundsof the former decisioQ: of, of those cases I dO not find the lIustllined. The,action is to recpver a balance of duties, as liquidated by .the collector. The answer setl9up that the :ll-ppolnted by the collector; to reapprajs6 the goo(jls was not as reqllired b,y section 2930pfthf'lReV1sed:Stat'\ltes; and alleged ffl,ct$ which it is improper perSiOn. Thfl does not set ,upthatwyof llll.eged facts ,were, stl,\ted.1i9 only thaUhe to.the in writing, Qpjections" to 'Such me.r<mJ1ptapprllislilr, to- his aoting aSi)ucb, ando"l'equested him to: appoiQt in, his: the QOllector "did not reply 'to such objections, and never took any Mtion: in thp. mat.The answ,er:d:oesl1ot state what "the objec:ter JiQns' I to the colleotor:ool': whether tbeY any actiqn :00 hie part; nor is it ,pJel\ded took ,any P,l':. reg,uested. to :,sums,:ll!S to!, fyj ng thetrptb ;of, 1the 0 bjectionsptesented, b,eenl otJ1er: thardo son'le different appraiser. No fraud is alleged, lior irregularitN.·nQrneglect<>f any duty by the collector that he Wll$ JAglllly.,requil'edto,pe.rform.'To sustain such a pleading would be' to hold that the importer, by simply objecting and asserting to the collector that the merchant appraiser ap. pointed by him was not a discreet and experienced merchant, could stop the collection of duties, raise that defense when sued, and prove any
BROW!f"J.
.,I
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