Kennedy v. United States

79 F. 893, 1897 U.S. App. LEXIS 3083

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: February 6, 1897
• Status: Published

Opinion

LACOMBE, Circuit Judge.

This case was taken under advisement by the court, after being partially tried, in order to rule upon two questions which it was agreed covered all the items in tlie bill of particulars, and upon one question (the statute1 of limit ations) which it was contended covered some of the items only; also, to rule upon the sufficiency of certain evidence given, as l.o the first two items, with the expectation that, after (lie court had thus indicated its opinion as to the weight of the testimony, some stipulation as to the tacts might be entered into, with a view of shortening the trial. The1 court has considered all these questions, bearing in mind the desirability of so disposing of the case in the first instance that in event of an appeal a new trial may not be necessary.

3. Tin; evidence which was introduced as to the two items was sufficient to satisfy the court that the articles in question had been manufactured of materials imported, which had paid duty when so imported, and that the evidence submitted by the plaintiffs substantially conformed to the regulations of the secretary of the treasury touching proof to be made upon claims for drawbacks.

2. In the opinion of this court, the statute of limitations runs from date of exportation, not. from the date of (he decision of the Treasury department passing upon these claims.

8. The provisions of section 8377 of the Revised ¡Statutes do not' apply, for the reason that under the regulations of the treasury department (S. 6708; dated Jan. 5, 1885), it is provided that the person producing an outward bill of lading in his own nana1, or duly indorsed to Mm by tlie party named in the bill of lading, authorizing the indorsee to act for customhouse purposes, shall be recognized as the exporter of the bags, for the purpose of making entry and receiving the drawbacks or refund. ¡Since in this case it was the plaintiffs’ firm, and not the manufacturer of the bags, who producía!'the outward bill of lading, the claim against the United ¡States was, at its inception, the claim of the plaintiffs, and no assignment of it as a claim was necessary to entitle the plaintiffs to recover.

4. Upon the evidence as it stands, I do not think plaintiffs arc; entitled to recover, for the reason that tlie bags in question were “leased” to the steamship company, with the understanding, of course, that they were to be brought back to this country. They were not “exported,” within the meaning of section 8019.

The result is that, a judgment should be directed for the defendant. There should be tio difficulty in so preparing the statement of facts that upon appeal all of these questions may be passed upon.