United States v. Lyman

26 F. Cas. 1024, 1 Mason C.C. 482

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: October 15, 1818
• Status: Published

Opinion

STORY, Circuit Justice,

after summing up the facts, charged the jury.

In this case the United States ground their claim to recover from the defendant upon no peculiar rights growing out of their prerogative, but upon principles, which every citizen might justly apply to vindicate his own rights under similar circumstances. There are several questions of law, which have been learnedly and ingeniously argued; and upon which, having formed a most decided opinion, it is my duty to pronounce It

The first question is, whether an action of debt lies in this case. By the common law, an action of debt is the general remedy for the recovery of all sums certain, whether the legal liability arise from contract, or be •created by a statute. And the remedy as well lies for the government itself, as for a citizen. And where the debt arises by statute, an action or information of debt is the appropriate remedy, unless a different remedy be prescribed by the statute. Bullard v. Bell [Case No. 2,121]. In respect to the duties payable upon the importation of goods, • the usual proceeding, where no specialty has been taken as a security, is an information of debt, which is emphatically called the king’s action of debt. But where a discovery, or account is wanted, either of the nature, or of the value of the goods imported, an exchequer information, in the nature of a bill in equity, for a discovery and account, is generally resorted to. Hale in Harg. Law Tracts, 216, 217; Attorney General v. Stranyforth, Bunb. 97; Attorney General v. Hatton, Id. 262; Attorney General v. Jewers, Id. 225; Waller v. Travers, Hardr. 301; Attorney General v. -, 2 Anstr. 558. And infor-mations of each kind are very common in cases, where goods have been smuggled, or where, by accident, mistake, or fraud, short duties only have been paid. Attorney General v. Jewers, Bunb. 225; Salter v. Malapert, 1 Rolle, 383; Attorney General v. Stranyforth, Bunb. 97; Attorney General v. Chitty, Parker, 37. The general principle upon which these informations rest, is, that in the given ease the common law or the statute creates a debt, charge, or duty in the party personally to pay the duties immediately upon the importation; and that therefore, the ordinary remedies lie for this, as for any other acknowledged debt due to the crown. And it is a general rule in . the construction of revenue statutes, that if a duty is charged on any article, the word “charged” means, that the owner shall be personally debited with that sum. Attorney General v. -, 2 Anstr. 558. These doctrines fully apply to the case now before the court. The act of 27th of April, 1816, c 107 [3 Stat. 310], on which this action is founded, and which, in this respect, follows the language of the former acts upon the same subject, declares, that “there shall be levied, collected, and paid, the several duties therein after mentioned” on the go^ds therein enumerated, when imported into the United States. And it has been repeatedly settled, both here and in England, that under such circumstances, the duties are a debt accruing to the government from the time of the actual importation. Salter v. Malapert, 1 Rolle, 383; Attorney General v. Stranyforth, Bunb. 97; Hale in Harg. Law Tracts, 212, 213; U. S. v. Vowell, 5 Cranch. [9 U. S.] 368; The Mary [Case No. 9,183]; U. S. v. Arnold [Id. 14,469]; s. c., 9 Cranch [13 U. S.] 104; Prince v. U. S. [Case No. 11,425]. And the importation is complete, as soon as the goods are brought within any port' with the intention of being unladen or sold there.

Prom whom then does the debt accrue? Beyond all doubt from the importer, be he the owner, or the consignee of the goods; for by the express provisions of the revenue act of 1799, c. 128 [1 Story’s Laws, 573; 1 Stat. 627, c. 22], the ownei or consignee, or, in case of his absence or sickness, his factor or agent, .are the only persons entitled to enter the goods, and the only persons, to whom the law allows (as will be hereafter shown) a eredit for the duties to be given at the custom house. Immediately, therefore, upon the importation of these goods, the owner or importer owes a debt to the government, which, independent of any security by bond, it has a right to enforce by an action of debt upon the principles of the common law. To be sure, if a credit be allowable upon the duties, it is a -debitum in praesenti solvendum in futuro. But 1 take if to be very clear, that no person can entitle himself to a credit under the revenue act of 1799, c. 128 [1 Story’s Laws, 573; 1 Stat. 627, c. 22], unless he gives bonds in the manner prescribed by that law.

It being then ascertained, that upon the principles of the common law an action of debt is the proper remedy for duties against the owner or importer, the next consideration is, whether a different remedy has been prescribed by any statute of the United States. The argument of the defendant’s counsel is, that by the revenue act of 1799, c. 128 [1 Story’s Laws, 573; 1 Stat 627, c. 22], the duties were required to be paid, or secured by bond to be paid, before they were permitted to be unladen; and that this security by bond constitutes the exclusive remedy for the government for the recovers7 of the duties. I cannot yield the slightest assent to this argument In the first place, the bond, if given, is not strictly and accurately speaking a statute remedy, but a statute security for the debt. A remedy, as understood in legal phraseology, is a mode prescribed by law to enforce a duty or redress a wrong, and not an obligation to guaranty a right, or to indemnify against a wrong. The remedy for the duties, when a bond is given and remains unpaid, is not, technically speaking, the bond itself, but a suit to enforce the payment of the bond. The technical rule, therefore, that where a statute remedy is given, it excludes the eom-mon law remedy by action of debt, does not apply; for the statute prescribes no such remedy.

In the next place, the construction of the statute, assumed by the defendant’s counsel, involves this difficulty, that, if true, the government have no remedy, where no bond is taken. Now, by the terms of the act no bond can be taken, where the duties do not exceed the sum of fifty dollars (section 62); and if, by any mistake, accident, or fraud, that sum is not paid, can it be contended, that the United States are without a remedy to recover it? Cases may easily be imagined of great inconvenience, if this doctrine were to prevail; and deeming a just and prompt collection of the revenue of the greatest importance, as well to the citizens as the government, I cannot believe, that any revenue act ought so to be interpreted, unless the interpretation be inevitable. Shall the importer, by his own illegal act, escape from the payment of a debt justly due to the government? Suppose by the purest accident, or mistake, no bond is taken for the duties, is the importer to be exonerated from all liability? Suppose a bond executed by an agent, and it turns out, that his authority had been revoked, or his principal was dead, is there no remedy against the principal or his representatives? Suppose, by mistake, the collector takes a bond for a sum less than, the real duties, or for a less quantity of goods than is really imported, shall not - the government recover for the short duties? It is clear, that if the collector were to take a bond for more than the legal duties, the importer would be entitled to redress; and why not, in the converse case, the government also? I put these cases, because' they are precisely the cases, where the government would be compelled to resort to the general action of debt; and they show, in a strong light, how little reason there would be, to put an interpretation on the revenue act of 1799, which would lead to such mischievous results. If there be nothing in the reason of the thing to support this interpretation, there seems to be as little in the language of the statute to justify it. The revenue act of 1799. nowhere declares, that the duties shall not be due, unless bonds are taken for the payment. But, on the other hand, every section, touching the subject speaks distinctly of the bonds, not as creating a right to the duties, but as a security for the payment of them. The distinction between a right, and the security of a right, is too obvious to require comment. Besides; it may be added, that the right to duties, grows, not out of the revenue act of 1799, c. 128 [1 Story’s Laws, 573; 1 Stat. 627, c. 22]; but out of the duty act of 1816, c. 107. This latter act makes the duties a personal charge on the importer upon the principles, which have been already stated, independent of any other sta. Jte. Further; the importer is not com-pellable in any case to give bonds for the duties; but it is at bis option to give bonds, or to suSer the government to take the goods into its own possession, to secure the duties. Yet the right to duties certainly does not arise from the possession of the goods, nor is it confined to the goods. If they are destroyed or lost, or become of less value than the duties after the importation, the government have still a right to the full duties. And the very terms of the act of 1799, in cases of a deposit of the goods, prove them to be at the risk and expense of the parties, on whose account they are deposited. Act 1799, c. 128, §§ 52, 56, 62 [1 Story’s Laws, 573; 1 Stat. 627, c. 22].

From all these considerations, I am without the slightest hesitation in pronouncing, that an action of debt well lies in favor of the government, to recover the duties levied under the revenue acts of the United States, independent of any bond which may be taken to secure them under the authority of those acts. Let us now apply the principles thus established to the present case. It is admitted, that the defendant was the owner of the teas at the time of their importation; and it follows, that he is indebted to the government in the sum stated in the declaration (which is the amount of the duties), and that the present action well lies against him for that debt, unless he can show a payment or extinguishment of it. No payment is pretended; but it is said, that there has been an extinguishment or satisfaction of the debt by the supposed purchase made by Lovejoy, and the acceptance of his bond for the duties at the custom house, in lieu of the deposit of the goods-. It is to be recollected, that the supposed purchase by Lovejoy was made six days after the arrival and entry of the ship at the custom house. And the first question that meets us, is, whether any sub-purchaser, after the importation of the goods, has a right to enter the goods and secure the duties at the custom house V The language of the revenue act of 1799, c. 128 [1 Story's Laws. 573; 1 Stat. 627, c. 22], in every section bearing on this subject, most distinctly confirms the right to enter the goods to the owner or consignee, or, in case of his absence or sickness, to his agent or factor. And the very terms of the oath taken on this - occasion, as well as the terms of the duty bond, expressly declare the party to be the importer in the character of owner or consignee. And the sixty-second section of the act further declares, that “to prevent all frauds arising from collusive transfers, all goods, wares, and merchandise, imported into the United States, shall, for the purposes of this act, be deemed and held to be the property of the • persons to whom the said goods, &c. may be consigned, any sale, transfer, or assignment prior to the entry and payment, or securing the payment of the duties on the said goods, &e. and the payment of all the bonds then due and unsatisfied by the said consignee, to the contrary notwithstanding.” If in this case Lovejoy had become a purchaser or consignee, while the ship was in transitu, there might have been weight in the argument, that he had a right to enter the goods. But he was in no sense the importer of the goods, having become (if at all) a purchaser after the importation; and therefore, he had not, within the terms of the act, any authority to enter the goods. It is quite another question whether, having entered the goods as importer, he is not estopped to deny his own liability to pay the bonds into which he has entered.

But the court has been pressed with the usage, which has very extensively, and without question very innocently prevailed, to allow sub-purchasers, after importation, to bond the goods at the custom house, in lieu of the original importers. It is a sufficient answer to this statement, that -no usage can prevail against the clear and unambiguous terms of the law. The collector is but a mere ministerial officer. It may be his misfortune, or the misfortune of the public, that he misinterprets the law; but certainly he cannot alter it. If it be inconvenient that sub-purchasers should not be permitted to bond goods at the custom house, it lies with the legislature, and not with collectors or courts of justice, to administer the proper relief. The collector then, in this case, had no authority to admit Lovejoy to enter the goods, or give bond for the duties. ■ The whole proceeding was irregular, and not binding upon the United States. I do not say, that the bond was absolutely void; for it did not lie in the mouth of Lovejoy to contest it, after having admitted and sworn himself to be the importer liable to pay the duties. But the receipt of the bond by the collector was no estoppel to the United States, since no act of his, not within the scope of the law, could vary their rights.

In this view of the case, the bond of Love-joy was -no extinguishment of the original debt of the defendant for duties: (1) Because Lovejoy was not the importer entitled to give it; (2) because the collector is not authorized to receive the bond of a third person in extinguishment or satisfaction of any duties due by the importer; and (3) because the bond was in fact received by the collector, not in extinguishment of any debt supposed to be due from the defendant to the United States, but, under a mistake of the law, as security for the duties supposed to be due and payable by Lovejoy. But I am prepared to go yet farther, and to hold that a bond given under the revenue act of 1799, by the importer himself, and a fortiori by a third person (if legal) would not extinguish the original debt created by the act of importation. I admit the doctrine, that in general a higher security taken from the debtor himself extinguishes the original contract. But this proceeds upon a presumption of law, that it is taken in satisfaction of the original debt; for it it appear otherwise upon the face of the security, it will not operate as an extinguishment. Thus, a bond of the debtor with sureties, or a mortgage, may be taken as collateral security for the payment of a promissory note; ■ and in such case it certainly does not extinguish the demand on the note. It is, therefore after all, a mere question of intent; and the law, in the absence of all other evidence of the intent, construes the higher security of the debtor himself, as an extinguishment, because it gives a higher remedy. I admit, also, that a higher security of a third person, if taken at the time of making the original contract, or afterwards, in satisfaction of the debt, operates as an extinguishment 3 Bac. Abr. “Extinguishment,” D; Hooper’s Case and Pudsey’s Case, 2 Leon. 110; Banorgee v. Hovey, 5 Mass 11. But there is this difference between the case of a higher security of the debtor himself, and of a third person, that in the latter case the law does not presume the security to be taken in satisfaction, unless it is averred and proved to be the agreement of the parties so to consider it. Whether the receiving of a higher security from one partner for a partnership debt be an extinguishment, unless expressly taken in satisfaction of such debt, may perhaps admit of some doubt, notwithstanding the language of some highly respectable authorities. Tom v. Goodrich, 2 Johns. 213; Sluby v. Champlain, 4 Johns. 461; Clement v. Brush, 3 Johns. Cas. 180. Et vide Drake v. Mitchell, 3 East. 251. It is not, however, material to consider this point, for the present is clearly not the case of a partnership.

On the other hand, I admit, according to the authorities cited (Fawkeners v. Bellingham, Cro. Car. 81; Jones v. Pope, 1 Saund. 37; Hodsden v. Harridge, 2 Saund. 64; Pease v. Howard. 14 Johns. 479), that an action of debt founded on a statute is to be considered as an action founded on a specialty. But I cannot admit, that it follows. that it is a debt of equal dignity with a debt due by bond. There may be different grades, even in respect to debts due by specialty; and I cannot consider a debt due for duties, as of a higher dignity than a simple contract debt due to the crown, which is clearly subordinate to all debts due on specialties, technically socalled. Toll. Ex’rs. bk. 3, c. 2. §§ 1-3. My opinion, therefore, that a bond taken under the revenue act of 1799, is not an extinguishment of the debt, accruing by the importation of the goods, is founded, not upon the notion, that the debts are of the same nature and dignity, but upon the intent and language of the statute itself. It provides, that within fifteen days after the arrival of the goods the importer may enter the goods, pay the duties at once, or give bond, with sufficient sureties, to secure the payment of the duties at a future period; or otherwise, the goods are to be deposited in the stores of the government, as a security for such payment. Act 1799, c. 128, §§ 36, 49, 62 [1 Story’s Laws, 573; 1 Stat. 627, c. 22], The government, therefore, has a lien upon the goods from the time of their importation for the amount of the duties; and it cannot, for a moment, be admitted, that the existence of this lien extinguishes the original debt. It is clearly collateral thereto; and the government may relinquish its lien on the goods without in any way affecting its right to the duties. The option given to the importer to substitute a bond with sureties in lieu of a deposit of his goods is with a view to relieve the goods from the lien for duties, and enable him to dispose of them freely in the market. The law, therefore, so far from intending to extinguish any existing debt, means no more man to substitute ohe species of security for another. And throughout the whole act, the bond is uniformly termed a bond to secure the duties, and not a bond in payment of the duties. If, therefore, the statute intended the bond as a mere security for the duties (and this intention is proved irresistibly to my mind) there is an end to the whole question; for in no ease can a higher security operate an extinguishment against the plain import of the statute, under which it is taken.

It is not, however, necessary in this case to contend for so broad a doctrine, though I cannot discern any incorrectness in It. For, at all events, if Lovejoy were a real purchaser, his bond, given at the custom house, would be considered only as the security of a third person for the proper debt of the defendant, which would not per se extinguish the debt; and the collector had no authority to receive it expressly in satisfaction. And. on the other hand, if Love-joy were a pretended purchaser only, then the defence cannot, in any possible view, be sustained consistently with the principles of law.

Verdict for the United States for the whole amount of duties.