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( 17 St. 234,) has placed it, since August 1, 1872, on the free list, and exempted it from duty by name. And this is sufficient to exclude it from the operation of the general clause imposing a duty on starches. When an article is designated in an act of congress by a specific name, general terms in the same or a subsequent act, although broad enough to comprehend it, are not considered applicable to it. A designation of an article eo nomine must prevail over a general description. Homer v. The Collector, 1 Wall. 486; Reiche v. Smythe, 13 Wall. 162; Movius v. Arthur, 95 U. S. 144; Arthur v. Lahey, 96 U. S. 112; Arthur v. Rheims, Id. 143.
The evidence introduced on the trial of this case was conflicting and unsatisfactory, because of the want of a known standard with which to compare the article. The weight of it may have been with the plaintiff, but that is not enough to justify a verdict for him. Leaving out of consideration the evidence of the defendant, the evidence of the plaintiff as to the identity of the article was open to question and doubt; and while the court might not feel authorized to set aside a verdict obtained upon it, for a stronger reason it would feel less so in case the verdict was against it.
But in the light of the evidence and verdict in the case of Chung Yune v. Kelly, it would be useless to grant a new trial in this case, as it would be followed, so far as can be seen, by another verdict for the defendant.
The motion is denied.
FORTY SACKS OF WOOL.
(Circuit Court, D. Massachusetts. December 20, 1882.)
1. CustomS-REVENUE LAWS-INTENT TO DEFRAUD.
Where wool was sought to be subjected to forfeiture for intent to defraud the customs revenue laws, an amended information that the wool was obtained otherwise than by purchase, namely, by importation, is insufficient, as impor
tation is not a mode of acquiring property. 2. PURCHASE OF Goods-TITLE, WHEN PASSES.
Where goods are purchased at a certain place and are sent by bill of lading indorsed to third person as security for a draft, the property does not pass until the draft has been accepted or paid, or there has been a waiver of accept
ance or payment. 3. SAME.
If a buyer in a doubtful case should state his purchase as having been made at either of two places, he is not to forfeit his property unless there is direct evidence that he made a willful misstatement with an actual intent to defraud.
This information charged that J. H. Mooney, the owner and claimant of the wool proceeded against, had imported it from Montreal into the United States by means of a false and fraudulent invoice, which declared the market value of the goods at Montreal to be 32 cents a pound, when it was much more.
The invoice, when produced, was found to contain no statement of market value; but it set out a purchase of the goods at Montreal, for 32 cents a pound, which required no averment of market value. Thereupon, by consent, an amendment was filed, of which the substantial allegations were:
''That it was therein falsely set forth and stated that the said 40 sacks of wool were purchased by said Mooney at said Montreal in the said month of February for 32 cents, including all charges, whereas, in truth and in fact, they were not purchased in Montreal, nor in said month of February, nor at the price and cost of 32 cents a pound, including all charges, but the said statement was wholly false, as the said Mooney at the time of making said entry well knew.
“And the plaintiffs say that the said wool was procured by the said Mooney at said Montreal, on said fifth day of February, otherwise than by purchase; that is to say, the said Mooney had imported the same from Liverpool, England, into said Canada, and had, prior to the importation thereof into the United States, at St. Albans, as aforesaid, repacked the said wool in new and different packages from those in which it had been imported from said Liverpool as afore
* which invoice was false, in that it did not set forth the manner in which said wool had been procured and repacked as aforesaid, and that it did not set forth the actual market value of said wool at Montreal."
It appeared in evidence that Mooney obtained a letter of credit from the Merchants' Bank of Canada, doing business at Montreal, which he sent to Ronald, Sons & Co., of Liverpool, wool merchants, who shipped this wool with other lots to Montreal, by way of Halifax, and took a bill of lading “to order," which they indorsed. They drew a draft on Mooney for the price of all the wool, payable to the order of the Merchants' Bank of Canada, and sent the bill of lading, invoice, and draft to the bank. The draft was presented to Mooney, who accepted and in due course paid it. The bill of lading was delivered to him, and he paid the freight and removed the wool into his warehouse. The wool did not cost Mooney above 32 cents a pound.
The United States asked the judge to rule that the purchase was made by Mooney in Liverpool and not in Montreal, which he refused to do; he likewise rejected evidence of the market price of wool at Montreal, which was offered by both sides; and upon the whole case he ordered a verdict for the claimant. The United States excepted to all these rulings and brought this writ of error.
G. P. Sanger, Dist. Atty., for plaintiff in error.
LOWELL, C. J. If this wool was worth more than 32 cents a pound at Montreal, the collector at St. Albans, upon report of the appraisers to that effect, would have been bound to collect a larger duty than if its value was 32 cents or less; but the importer was under no obligation to state in his invoice what he may have supposed the market value to be, unless he obtained the goods "otherwise than by purchase.”
The theory of the amended information is that this wool was obtained otherwise than by purchase, namely, by importation from Liverpool; but, as importation is not a mode of acquiring property, this ground was abandoned in argument, and the point now taken is that the purchase was made at Liverpool, and not at Montreal; or that, at least, this question should have been submitted to the jury. It is admitted that every fact is truly stated in the invoice unless it be the place of purchase. The goods were bought, and they cost at Montreal less than 32 cents; but the government insists that they were bought at Liverpool. If this be so, the information, as I have already said, does not charge this as the false statement, and the government cannot prevail.
Even if the information was sufficient, still the fact is that these goods were bought at Montreal. The cases cited by both parties show that where goods are sent, as these were sent, by a bill of lading indorsed to a third person as security for a draft, the property does not pass, at law, until the draft has been accepted or paid, or there has been a waiver of acceptance or payment. Until one of these things is done, the goods cannot be attached as the property of the buyer; and if he should obtain possession of them, he cannot give a good title even to a bona fide purchaser. Dows v. Nat. Erch. Bank, 91 U. S. 618; Jenkins v. Brown, 14 Q. B. 496; Newcomb v. Boston & L. R. Co. 115 Mass. 230, and two cases immediately preceding and two following that case in the report; Shepherd v. Harrison, L. R. 4 Q. B. 197, 493; L. R. 5 H. L. 116; Benj. Sales, (2d Am. Ed.) $ 399, and
No doubt the buyer has an equitable title. If the bankers, for example, had sold the goods and indorsed the bill of lading to a stranger, Mooney might have recovered of them whatever the goods were worth above the original cost. But the legal title came to him in Montreal. Still further, the revenue laws, though liberally construed for the government, must be construed reasonably, and as an
importer may be supposed to understand them. If the buyer, in a doubtful case, should state the purchase either way, as having been made in Liverpool or in Montreal, he is not to lose his property, unless there is some scintilla of evidence that he made a willful mis. statement with intent to defraud.
In this case there was no evidence tending in the slightest degree to prove fraud in any direct way. The United States endeavor to prove an actual intention to defraud them, without which no for. feiture can be imposed, (St. 1874, c. 391, § 16; 18 St. 189,) argumentatively, as thus: Liverpool was the true place of purchase; when, therefore, the claimant gave Montreal as the place, he must have had a motive; that motive must have been to deceive the appraisers by stating a particular purchase which they would take as evidence of market value. If this roundabout way of proving actual fraud, without any other single fact or circumstance corroborating that view of the transaction, were sufficient to establish a prima facie case, it would, of course, be competent to prove that the market price did not exceed 32 cent's at Montreal. But the judge ruled out evi. dence of this, and ordered a verdict, very properly, because the fact as stated was true, and even if not, there was no reason to suppose that anything but a most natural mistake had been committed. Judgment affirmed.
NEW ORLEANS Nat. BANKING Ass'n and others v. LE BRETON, Assignee,
(Circuit Court, E. D. Louisiana. December, 1882.)
1. ASSIGNEE-REVOCATORY ACTION.
No action, pure and simple, for the annulment of a fraudulent conveyance no revocatory action--can be brought or be maintained by a creditor or creditors of a bankrupt, but such action must in all cases be brought and be maintained by the assignee.
Glenny v. Langdon, 98 U. S. 20. 2. SAME-FORECLOSURE OF MORTGAGE.
But a bill to foreclose a mortgage, notwithstanding a fraudulent transfer of the mortgaged property, and notwithstanding the bankruptcy of the mortgage debtor, may be brought and maintained by the mortgage creditor.
In Bankruptcy. On demurrers to bill and cross-bill.
"Reported by Joseph P. Hornor, Esq., of the New Orleans bar. See 7 Sup. Ct. Rep. 772.
NEW ORLEANS NAT. BANKING ASS'N V. LE BRETON.
John D. Rouse and Wm. Grant, for complainant.
PARDEE, C. J. The case made by the bill and reiterated in the cross-bill shows that the complainants are the holders of certain mortgage paper given by one Williams and bearing on a certain sugar plantation in the parish of Terrebonne, in this state; that S. H. Ken. nedy & Co. were also holders of mortgage rights on the same plantation; that Kennedy & Co. combined with Williams to make a fraudulent transfer of the plantation, so as to defeat the other mortgage holders, in pursuance whereof a pretended judicial sale was made, S. H. Kennedy becoming the purchaser and transferee, and entering into possession; that subsequent thereto Williams took the benefit of the bankrupt act and received his discharge; that the indebtedness of Williams to complainants was admitted on the bankruptcy schedules; and that defendant E. D. Le Breton is the duly-appointed assignee in bankruptcy.
The relief sought is to have the alleged fraudulent transfer annulled as against complainants' demands, the plantation declared subject to their mortgage rights, for an account, and a foreclosure. The demurrers are on the ground that the complainants have no right to bring and maintain the suit; but the suit, if brought at all, must be brought by Williams' assignee in bankruptcy.
It seems to be clear, and it is conceded for this case, that all suits brought for the benefit of the bankrupt's estate must be in the name of the assignee, who represents that estate, and that a general creditor, an unsecured creditor, a creditor at large, in short any creditor who must look to the bankrupt's estate for his claim, or who derives any of his rights of action by or through the bankruptcy, cannot maintain an action to set aside a fraudulent conveyance of the bankrupt. And, for the purposes of this case, we may go further, and concede that no action, pure and simple, for the annulment of a fraudulent conveyance—no revocatory action-can be brought or be maintained by the creditor or creditors of a bankrupt; but such action must in all cases be brought and be maintained by the assignee in bankruptcy. See Glenny v. Langdon, 98 U. S. 20.
But such rule does not seem to affect the case under consideration. The complainants derive none of their alleged rights through the bankruptcy. Williams' solvency or insolvency would not defeat their action. The suit is not for the benefit of the bankrupt's estate; it is