Abner Doble Co. v. United States

GILBERT, Circuit Judge, after stating the case as above, delivered the opinion of the court. The plaintiff in error contends that the complaint does not state a cause of action against it, for the reason that it charges it with duties-on goods not imported by it, or consigned to it, but imported by another; and it asserts that there is no statute which makes one who-withdraws goods from a bonded warehouse chargeable with the duties-thereon unless he was the importer or consignee; quoting I Supp. Rev. St. 744 [U. S. Comp. St. 1901, p. 1886] : “That all merchandise imported into the United States shall, for the purpose of this act, be deemed and held to be the property of the person to whom the merchandise may be consigned; but the holder of any bill of lading consigned to order and endorsed by the consignor shall be deemed the consignee thereof; and in case of the abandonment of any merchandise to the underwriters, the latter may be recognized as the consignee.” The decisive facts alleged iñ the complaint upon which the plaintiff' in error was held liable were that the plaintiff in error made withdrawal entry, and withdrew the goods for consumption, and that some six weeks later the duties were finally ascertained and liquidated by the collector at $2,341.50, which sum the plaintiff in error paid except a balance of $50.18, for which the action was brought. The law does not prescribe the time when the collector shall liquidate the duties. He may liquidate before or after a year after entry. The only limitation upon his action in that regard is that, after once liquidating, he may not, in the absence of fraud or protest by the owner, importer,, agent, or consignee, reliquidate after a year from the date of entry. Section 21, Act June 22, 1874 [U. S. Comp. St. 1901, p. 1986]; U. S v. De Rivera (C. C.) 73 Fed. 679; Gandolfi v. U. S., 20 C. C. A. 652, 74 Fed. 549. We agree with the district court that the question, whether the government is estopped from maintaining the action by section 21 of the act of June 22, 1874 [U. S. Comp. St. 1901, jp. 1986], is not presented by the facts alleged in the complaint, since there is no averment that the duties were liquidated prior to April 24, 1895. In the averment of the complaint that the plaintiff in error made withdrawal entry, and withdrew the goods for consumption, and paid all the duties except the small balance unpaid, there is implied that the plaintiff in error sustained such relation to the goods; 'whether as consignee, or underwriter or otherwise, as to entitle .it to make such withdrawal. Admitting, as it does by. the demurrer,. [154] that it made the entry and the withdrawal for consumption, and paid a sum on account of the duties so liquidated, it cannot say that the complaint is fatally defective for the reason that it fails to set forth what was the precise relation of the plaintiff in error to the goods. From the facts pleaded, the presumption arises that the plaintiff in error was chargeable with the duties. If facts existed which were sufficient to overcome that presumption, they constituted matter of defense to the complaint, available by answer. On the face of the complainl a cause of action is stated. The judgment of the district court is affirmed.