SHERMAN V. HEDDEN.
«(Jircuit Oourt, B. D. NfJID York. December 1,1887.)
CUSTOMS DUTIES-AcTION TO RECOVER-BILL OF PARTICULARS.
Where the bill of particulars served by plaintiff in a suit against a collector of customs to recover excess of duties alleged to have been illegally exacted does not contain all the items required by section 3012, Rev. St., the court is without power to grant leave to amend nunc pro tunc.
On rehearing. See ante, 756. William Force Scott, for the illotion. Stephen A. Walker, U. S. Atty., and W. Wickham Smith, Asst. U. S. Atty., opposed. LACOMBE, J. Careful consideration has been gi.ven to the points presented by the plaintiff upon the reargument of this motion. The result of a re-examination of the whole question is, however, but confirmatory of the opinion expressed by the court upon the reargument-that it is without power to grant the relief asked for. H the original statute (chapter 201 of the Laws of 1866, § 36) and the section of the Revised Statutes (3012) in which it is re-enacted were mere regulations of procedure in court, the provisions of section 954 of the Revised Statutes would, no doubt, confer upon the court the power now invokE>d. The sections cited, however, seem, in unmistakable language, to provide a statutory limitation upon the right of recovery; and the mere use of the phrase "Bill of Particulars" does not alter their effect. If the question arose upon the trial of the case whether the plaintiff might recover in the absence of proof showing that he had within· the time limited served the notice which the statute calls for, there can be no doubt that it would be held to be as necessary a prerequisite as is the service of the notice of protest, or of the notice of appeal; and it would surely not be claimed that either of those notices might be amended by the court. In the recent instances referred to (see Dieckerhoff v. Robertson, 29 Fed. Rep. 781, and the original opinion on this m0tion, ante, 756,) where amendments of similar bills of particulars have been allowed, the objection now taken was not urged, and it does not seem to have been distinctlypresented to the court in Pott v. Arthur, 15 Blatchf. 314, the provisions of section 3012 being therein disposed of as if it were merely ,a. regulation of procedure. The application to vacate the ordE!r denying leave to amend is therefore denied; but the original order may be modified by adding a clause to the effect that theiapplication is denied solely on the ground of want of power. Thus the plaintiff, should he seek to review this decision, will not be prejudiced by any suggestion that the discretion of the court was exercised against him.
REPORTER, DIECKERHOFF and others
D. NewYorm. November 7, 1887.)
OF BILL OF'
CUSTOMS DUTIES-ExCESS OF-AcTION TO PARTICULARS.
A motion, in I1n action to recover for excessive duties, to amend the bill of particuill-rs by increll-Sing the amount claimed therein for excess of duty, will be denied, where it appears that the mistake in making up the original statement was entirely that of the plaintiff's agent or broker. and was in no way induced by any misinformation furnished at the custom-house.
Action to, Recover Excess of Duties Paid under Protest. On motion to amend bill of particulars. A. P. Ketchum, for complainalJ,t. Stephen A. Walker, U. S. Atty., and Wm. Wickham Smith, Asst. U. S. Atty. , for defendant. LACOMBE, J. In this case plaintiffs ask to amend the bill of particu- ' lars by increasing the amount claimed therein for excess of duty. Themistake in making up the original statement, however, appears to have been entirely that of plaintiffs' agent or broker, and in no way induced by any misinformation furnished at the custom-house. The motion is denied. See memoranda in Castner v. Magone, ante, 578, and Sherma'lI. v. Hedden, ante, 756, (filed November 7, 1887.)
WITTERS, Receiver, etc.,
SOWJ,ES and others.
((Jt'ttJuit Oowrt, D. Vtrmont,' October 5, 1887.) 1.
LAws. ,Among the assets of an insolvent national bank were three mortgages which were sought to be impeached by the'assignees of the mortgagor as having been given in violation of the Insolvency law of the state. Plaintiff, receiver of the bank. claimed that the state law. was inoperative upon the ll-ssets of a nMioDll-l bank, and was ineffectual to divest him of the title acquirert by the mortgages. Held, that the were governed by the state law, and the bank took them with all the lImitations imposed by the laws of the upon them. ,
SAME-PREFERENCES-LIMITATIO:/i OF TIME.
Rev. Laws Vt. § 1860, provides that a conveyance made by an insolvent, or one in contemplation of insolvency, within four months before the filing of a petition of insolvency by 01' against him..made with a view to giving a preference to certain of his creditors,shall be,void. It appeared that the mortgages sbught to be declared v6ld)'Vere made three months before the filing of petition'of Insolnncy by'& creditor of .the mortgagor; but the petition was left to be acted upon when requested, and,not acted upon until nearly two- , months later, at the instance of another creditor. Held, that the statute con; templated present judicial procedure on the filing of the petition; and the delay acting npon the petition at the instance of the petitioning creditor brought the conveyances outside the purview of the statute.