clined; and I see no goOd reason for construing the special statute of limitations imported into this contract in such way as tomake'itoperative during a period wpen, by virtue of other stipulations of the contract, the right of action is suspended. There is another consideration the view above The stipulationin hmItmg rIght of action to SIX months after the loss occurs, IS a provision, inserted for the special benefit of the insurer. If, then, by comparing the stipulation with. other provisions policy, a doubt arises as to the time when the limitation begins to run, that construction ought to be given (if it be a reasonable construction) which is most favorable to the assured, against whom it was intended to Qperate. The view which the court has taken seems to be in harmony with the views expressed by other courts on the same question, vide.Steen v. Nwgara Fire 1m. Co., 89 N. Y. 315; Mayor, etc. v. Hamilton 1m. Co., 39 N. Y. 45; Ohandler v.St. PaUl Ins. 00.,21 Minn. 85; Spare v. Home Mut. 1m. Co., 17 Fed. Rep. 568; and May, Ins. § 479. The demurrer is overruled, and the defendant held to answer.
WEDEMEYER and others 'IJ. LANCASTER, Surveyor, etc. BATESON SAME. SIMMONS HARDWARE Co. 'IJ. SAME.
J:(JirCJlit Oourt, B. D. Mi880uri, E. D. May 8, 1887.)
CuSTOMS D'!7'J'IES-ExCESSlVE DUTIES-PRACTICE.
Actions to recover excess of duties paid under protest are purely statutory.
Where the petition shows, on its face, that the plaintiff has taken all the steps, antecedent to a suit, prescribed by sections 2931 and 3011, Rev. St. U. S., and furthermore contains a statement of all those matters required to be contained in a bill of particulars under section 8012, Rev. St. U. S., it is not demurrable on the ground that it does not state a good cause of action. The facts required to be stated in the bill of particulars need not be stated in the petition any more fully than they are required to be stated in the bill.
Where the petition stated that the defendant, ODa given day, required the plaintiff, as importer, to pay a given sum, in excess of the lawful duties, on certain described goods, which were invoiced on a certain day, shipped from a certain place. on a certain steamer, and were entered in the custom-house on a given date, held, that it was not demurrable on the ground that it merely stated legal conclusions, and did not state any facts in an issuable form.
At Law. On demurrer to petitions. John M. Holme8, for plaintiff. Thomas P. Bashaw, Dist. Atty., for defendant. THAYER,J., (oraUy.) These are suits against the surveyor and acting collector ofimport duties at the port of St. Louis, to recover excessive duties all611ed to have been exacted by him on certain merchandise entered at this
WEDEMEYER V. LA.'IlCASTER.
port. Forn1erly such actions were brought in asswmpsit, and rested upon the implied promise of the collector to refund money which he had exacted as agent of the government without lawful authority; but, as was fully explained in Arnsan v. Murphy, 109 U. S. 238, 3 Sup. Ct. Rep. 184, actions of this description are now regulated by, and are founded upon certain statutory provisions. Vide sections 2931, 3011, 3012, 3012l, Rev. St. U. S. This much is said by way of premise, in view of the fact that the demurrers have been argued upon the theory that these are ordinary common-law actions, and that the ordinary rules of code pleading are applicable to the cases. The statute which creates a .right of action against a collector, to compel him to refund money unlawfully exacted from an importer, requires the plaintiff, as a condition precedent to his suit, (1) to file a protest with the collector, when the duties have been imposed, wherein he Inust distinctly specify and set the ground of his objections to the decision of the collector respecting the amo,imt of suc.h duties; and (2) to prosecute an appeal from the to the secretary of the treasury. Sections 2931, 3011, collector's $upra.! If the protest and appeal prove unavailing, or if the secretary's decision is delaYlild more than 90 days, suit may be brought, and after suit is brought plaintiff is further compelled to serve on the defendant a "bill of particulars of his demand," the nature of which is fully set forth in section 3012, eupra. Reference is made to these provisions of the statute, particularly to section 3012, with a view of showing what allegations are essential in a suit of this character to constitute a good complaint or declaration. The action being purely statutory, as declared by the supreme court, it would seem that a declaration ought to be held good that shows on its face (as these declarations show) that the plaintiff has taken all the steps antecedent to a suit prescribed by sections 2931 and 3011, and that furthermore contains a &tatement of all thOSe matters required to be ()ontained in a "bill of particulars" under section 3012. What more is essential to make out a cause of action, and what other inform'ation can a defendant reasonably require to enable him to prepare his defense? It is urged that when the pleader avers that the defendant, on a given day, required, him, as importer, to pay a given sum in excess of the lawful duties, on certain described goods, which were invoiced on a ceriaill day, shipped from a certain place, on a certain steamer, and were entered in the custom-house on a given date, that he merely states a legalcbhclusion, and does not state any facts in an issuable form. This seems to be the sole point of the demurrer. But it must be borne in mind (even if the criticism of the averment is justifiable) that the statute on which this action is based does not require any greater fullness of statement, even in what is termed a bill of particulars requ.ired to be served on the defendant SUbsequent to the commencement of the $uit. are clearly untenable, and must be overruled.
UNITED STATES V. EARNSHAW. l
.(DisfJrict (Jourt, E. D. Pertn81/1'Dania. April 19, 1887.)
Cl1STOMS DUTIES-AI'PRAISEMlllNT-ADJOUBNMENT OF HEARING-REFUSAL;
Where appraisers have :lixed a time for a hearing. and given notice thereof to the parties interested, the refusal to postpone the heating at the request of one of the parties is within their discretion, and the court will not interfere.
Sur motion for judgment for the defendant non obstante veredicto. Richdrd a. McMurtrie, for the motion. John K. Valentine, U. K 'Dist. Atty., contra.
BUTLER, J. The defendant's only substantial ground of complaint is the appraiser's refusal to adjourn the hearing until a futuretime. Proper notice WaS sent him, in pursuance of which his representative attended, and requested an adjournment. This request was .', refused. Whether it should have been granted the court cannot consider.' The appraisers were the sole judges of this. I cannot assume that they abused their authority,-acted arbitrarily; without exercising the discretion committed to them; llnd on this ground treatthe appraisement as void. Judgment must therefore be entered on the verdict for the plaintiff.
UNITED STATES V. GROTTKAU.'
(District (Jourt, E. D. Wisconsin.
ll'larch 12, 1887.)
The Revised Statutes of the United States, § 5395, which provide for pun· ishmentby:line and imprisonment where any person knowingly swears falsely in an oath or affidavit made or taken under any law relating to the naturali· zation of aliens, are to be construed to refer to oaths wllich the naturalization law requires or authorizes a party to take.
ALIENS-NATUBALIZATION-AFFIDAVIT BY ApPLICANT.
The Revised Statutes of the United States, § 2165, relating to the naturali· zation of aliElns, which provide that it shall be made to appear to, the satisfaction of the court admitting such alien that he has resided within the United States :live years at least, and within the state or territory where such court is at the time held one year at least, but that the. oath of the applicant shall be in no case allowed to prove his residence, are to be construed as a prohibition forbidding the taking of the oath of the applicant himself as proof of his residence, and not a provision merely that the oath of the applicant shall be regarded as insufficient for the purpose.
PERJURy-EXTRAJUDICIAL OATII--NATURALIZATION LAWs.
An path l)1ade by an applicant under the naturalization laws, that he has resided in the state in which his application is made for one year next preceding the same, is extrajudicial, and not authorized by section 2165 of the Revised Statutes of the United States. and such apPUclJ,nt cannot be convicted on a Charge of perjury for the same, brought under section 5395 of said Re, . vised Statutes. bV C. Berkeley Taylor, Esq J of the Philadelphia bar.