ORUNO YUNE V. SRURTLEFB.
aee no need fO,r any function of the comptroller when the affairs of the bank are once properly in the hands of the courL The demurrer to the plea in abatement. is oVtlrruled, ll.nd menli rendered on the demurrer.
(£Mou;' 001JA't, D. O'l'lgofl.
February 1S, 1882.)
DUTIE!l-LnnTATIoN OJ' ACTION TO RBCOVER-NoTICB TO IMPORTER Otl' DBVISION OJ' SECRETARY.
Under section 2931 of the Revised Statutes the importer is not entitled to notice of the decision of the secretary upon an appeal from the collector, and the limitation of 90 days within which the importer may commence an action under said section to recover duties alleged to have been illegally exacted commences to run from the date of said decision. and not. flom the time the importer may have knOWledge of it.
Action to Recover Duties. W. Scott Beebe, for plaintiff. Rufus Mallory, for defendant. DEADY, D. J. Chung Yune, a Chinese firm of this city, bring this action to recover from defendant, the collector of customs at this port, the sum of $1,034.84, alleged to have been illegally exacted as the duty upon 372 boxes of sago flour, entered here for consumption. from The importer duly appealed to the secretary of the the decision of the collector as to whether the goods were dutiable. or not, and on September 27, 1881, the secretary affirmed the action of the collector, but the same was not brought to the knowledge of the plaintiff until October 9, 1881. The action was commenced on De: cember 27, 1881, the ninety-first day after the decision of the secretary. The defendant demurs to the complaint, for that it appears therefrom that the action was not commenced within ninety days from the decision of the secretary, as required by statute. Section 2931 of the Revised Statutes (section 14 of the act of June 30, 1864.; 13 St. 214) provides that the decision of the secretary of the treasury, on an appeal from a decision of a collector of "as to the rate and amount of duties to be paid" on merchandise entered at his port, shall be final and conclusive, and such merchandise s.uit shall be brousht "shall be liable to duty accordingly,
,,_ ..... ;j. ...... ,' -," ·., ." ' . , ., , ... ,'
within 90 days after the decision of the secretary on Buch appeal for any duties which shall have been paid before the date of such decision." The plaintiff, admitting as he must that this action was not com· menced within 90 days from the decision of the secretary, contends that the statute should be construed as if it read; unless the action shall be commenced within 90 days after the importer has knowledge or notice of such decision. But this construction wonld be plainly without the letter of the statute and the apparent intenti9n of congress. The act makes the limitation to commence from the date of the secretary's decision, and is silent as to the knowledge of the party or the effect of his want of notice. The decision of the secretary is a public act in writing, filed in the department, and under the present treasury regulations is communicated to the collector and importer. As a matter of fact, the plaintiff in this case bad notice of decision in 12 days from its date, and therefore had 78 days within whioh to commence suit. In such a case there is no ground to claim that the law has operated baldly, or so as to prevent the plaintiffs from asserting theIr rights in court by the use of ordinary diligence. But a case may occur, it is suggested, where, through the negligence of the officials, or other cause, the importer might not learn of the secretary's decision so as to bring his action within the time; yet even then, as said in substance by Mr. Justice Strong in Westray v. U. S. 18 Wall. 322, in considering a similar question underthe same statute, the court cannot require a notice to be given to the importer to prevent the limitation from running, when congress has not. In that case the court held that the imporLer was not entitled to notice . of the liquidation or estimate of duties on his merchandise by the collector, so as to enable him to take his appeal to the secretary of the treasury within 10 days thereafter, as the statute requires, but that he must get his information on that point for himself. If any authority is needed in support of this demurrer, beyond the plain provision of the statute, that case appears to be decisive of this. It is true that the importer may learn of the decision of the collector more readily than that of the secretary, if no means are taken to furnish him with either. But the law does not require him to be furnished with notice at all. The department, in the administration of the law, has found it just and convenient to direct that notice be given to the iInporter of the decision of the officer, but the failure to do so does not affect the legal rights of the parties. Notwith-
ULLMAN V. MEYER.
standing the want of formal notice of the decision, the importer may immediately sue to recover back the duties alleged to have been illegally exacted, and the limitation upon his right to do so begins to run at the same time. The argument for the demurrer assumes that it was the intention of congress that the importer should have all of 90 days within which to commence his action. But as, in the great majority of cases, one-third of that period is more than sufficient for such purpose, the remaining 60 days must have been given to cover any possible contingencies, such as the getting or receiving notice of the decision of the secretary. This action not having been commenced within 90 days from the decision of the secretary, it is barred by lapse of time, and the demurrer is therefore sustained.
(Oircuit Court, S. D. New York. January 31,1882.
1. STATUTE OF
FRAUDS-PROMISES TO MARRY.
The provision of the stat.te of frauds requiring all agreements not to be performed within a year to be in writing, applies to promises to marry. The exception in the third section of the statute does not withdraw agreements to marry altogether from its GperatioD.
Motion for N':lw Trial. WALLACE, D. J. I am constrained to hold that the defendant was erroneously precluded from the benefit of his defenIJe under the statute of frauds on the trial of the action, and that the construction of the statute, which, upon a hasty reading seemed correct, cannot be maintained. The case turns upon the construction of the statute of frauds, the phraseology of which differs from tqat of the statute of Charles II. It is stated in Parsons on Contracts, (vol. 3, p. 3,) that although provisions substantially similar have been made by the statutes of this country, in no one state is the English statute exactly copied. .. It was alleged in the present case, and the evidence tended to show, that by the terms of the agreement of marriage between the parties the marriage was not to take place until some time after the expiration
-Reported by S. Nelson White, Esq., of the New York bar.