pay over, within a certain time, the sum collected on such assessment. The scheine is a peculiar one, but we do not perceive how the court can avoid its peculiarities and impose upon the association an obligation directly to pay money which it did not in that form assume. We hold, therefore, that, to entitle the plaintiffs to recover in their present form of action, they must allege and show that the association has levied an assessment upon certificate holders to pay the death loss, and has collected the amount of such assessment, and has failed to pay the sum so collected. In short, to maintain this action, it must appear that the association has in its hands the money collected by ass.essment which it ought to pay to the plaintiffs as the beneficiaries entitled to the same. If the association has failed to make the required assessment, or, having made an assebsment, has neglected to collect the same, the plaintiffs' remedy is in some other form of action or proceeding. The demurrer to the complaint is sustained, with leave to the plaintiffs to amend within 30 days, as they shall be advised. Mr. Justice HARLAN heard the arguments of counsel, and concurs in this opinion.
BOYD and others.
(Circuit Court, 8. D. New York. JUly 22,1885.)
OUSTOMS DUTIES-FRAUDULENT ENTRY OF GOODS AS .I!'REE-ACTION TO RECOVER
Where merchandise, which was subjPct to the payment of duties, upon which no duties were paid by the importers, because they procured the merchandise to be entered and delivered to them free of duty, and without any examination by the customs officer, by means of false and fraudulent representations to the secretary of lhe treasury that the Merchandise was imported for the use of the United States, which induced that officer to a permit for the entry of the merchandise frl.e of duty, has been thus falsely entered, the United l:ltates may maintain an action to recover the duties unpaid.
At Law. This suit for recovery of duties arose upon facts similar to those stated in the case of U. S. v. Boyd, post, 6lJ2. Stanle.l/, Clarke et Smith, for defendants. John Proctor Clark, Asst. U. S. Atty., for plaintiff. WALLACE, J. This action is brought to recover duties. The complaint, which is demurred to, alleges in substance the importation by the defendant into the port of New York of dutiable merchandise from a foreign country, which was subject to the payment of duties, upon which no duties were paid by them', because they procured the
UNITED STATES V. BOYD.
merchandise to be entered and delivered to them free of duty, and without any examination by the customs officer, by means of false and fraudulent representation to the secretary of the treasury that the merchandise was imported for the use of the United States, which induced that officer to issue a permit for the entry of the merchandise free of duty. It is insisted, in support of the demurrer, that an appraisement of the merchandise and liquidation of the duties by the proper customs officer are conditions precedent to the right of the government to collect the duties; and that in the absence of such appraisement and liquidation, the only remedy of the government is to proceed for a forfeiture of the merchandise under section 12 of the act of June 22, 1874, known as the "Moiety Act." The demurrer is without merit. It is a very ancient doctrine that debt lies for customs due upon merchandise even though the goods . are forfeited for non-payment of duties. The authorities are cited in the opinion of STORY, J., in U. S. v. Lyman, 1 Mason, 481. Where goods were smuggled, or where the possession of the goods was relinquished by the customs officer through fraud or mistake, the duties were recovered in the English, exchequer by information, and the importer might be called upon by information in equity to disclose the amount and value of the goods for the purpose of ascertaining the amount of duties payable. Attorney Gen. v. Gresner, 1 Parker, 279. In the case of Meredith v. U. S. 13 Pet. 486, where the language of the statute imposing duties upon imported merchandise was substantially the same as that employed in the statutes in force when the merchandise in suit was impol'ted, the supreme court helel that the right of the government to the duties accrues, in the fiscal sense of the term, when the goods arrive at the port of entry; and that the debt for the duties is then due, although it may be payable afterwards according to the regulations of acts of congress, as where a bond is given for the duties, or a deposit of the goods is made by the importer, in which case the importer is entitled to the time of credit allowed by law. There are many other decisions of the supreme and circuit courts to the same effect, which need not be cited, but it is proper to refer to the cases of U. S. v. George, 6 BIatchf. 406, 415, and U. S. v. Gobb, 11 FED. REP. 76, as bearing more directly upon the questions involved here. In the first of these cases BENEDICT, J., 11ses the following language:
"It is said that there could be no legal liability for duties because no duties can be 'collected, levied, and paid' as duties unless the merchandise is in the possession and control of the government; that, as soon as property is fraudulently withdrawn, the power to collect duty ceases; and fines, penalties, and forfeitures are imposed. But the law is otherwise. Duties are not simply a charge on merchandise to he collected only by the custody of the property. They are also a personal charge against the itnporter-a debt created by law which may be collected by a civil action wholly irrespective of the possession of the goods."
The case of U. S.v. Oobb is directly in point. There certain merchandise had been so classified by the instructions of the secre· tary of the trea.sury as to permit it to be imported free of duty, and, although dutiable, by oversight was entered free, and was delivered to the importers without examination or appraisement. A suit was subsequently brought to recover the duties to which the merchandise was subjected, and the court held the action maintainable. The court said:
"They [the duties] are due, although the goods have been smuggled, or for any reason never come into the hands of the customs ofricer, or the statute proceedings bave never been instituted, or, through accident or mistake or fraud, no duties or short duties have been paid; and the importer is not discharged of his debt by th'3 delivery to him of the goods without payment."
It is not necessary to decide whether the government can at the same time proceed for a forfeiture of the merchandise for the non-payment of duties, and for a recovery of the duties in an action of debt, as that question does not arise upon the pleadings. Upon principle it would' seem very plain that the defendants, who have deprived the government by their fraudulent acts of an opportunity to appraise the goods and liquidate the duties; cannot complain because such proceedings were not taken. The demurrer is overruled.
(Oircuit OouTt, S. D. New York.
As the right to duties accrues by the importation of merchandise with an intent to unlade, and immediately upon the importation the duties become a personal charge and debt upon the importer, the United States is deprived 'of duties, within the meaning of section 12, act June 22, 1874, (Supp. Rev. St. 79,) the moment it becomes entitled to them and they are withheld by the importer, and it is immaterial whether its officers retain the merchandise or not. . 2.
DUTIES - PROSECUTION FOR ATTEMPTING TO ENTER GOODS FREERIGHT 'fO DUTIES, WHEN ACCRUES-ACT OF JUNE 22, 1874, § 12.
There is nothing in section 12 of the act of 1874 that limits its application, as regards fraudulent attempts to enter goods free, to proceedings at the custom-house only, and it is applicable to such attempts wherever made.
TO SECRETARY OF TREASURY.
The defenda.nts were indicted under section 12 of the act of June 22, 1874, for the fraudulent entry of 35 cases of imported plate-glass as free, by means of a false and fraudulent letter. The government had previously procured from the defendants a large quantity of their own plate-glass, for immediate use in the construction of the United States court·house and post-office building at Philadelphia, at a dis.count from the domestic price equal to the rate of duties, under an agreement with the defendants that they might import, free of duty,