required. In some a shorter time is sufficient, IOmetillilesthe rule is applied where there is no statutable bar. 1\ is for, the court to apply the inherent principles of its own system. ofjurjspl,udence, and ,to decide accordingly;" citing a number of !lases. :aesides,' the plaintiff's llj.Ches is wholly independent of the statute ofliInitations. J udgmentis affirmed.
Surveyor of Customs.
September 17, 11192.)
OP ASSISTA.1'rT SBORBTARI1II
, bill appeal to 'the secretary of the treasury, as required by Rev. St. § 2981, alleged
, " All ilI!po*,r, tp recove!"' duties paid, in order tc) avoid the bar resulting frC)1n bis failure to bring tbe actlOU within 90 days after the decision of
'OP THB TRRA,8t1tiT.
that SUD,h,' dl¥llsioJl was void, beoa,llse lI!ade, not by the se()retary, but bY the assistant 'aqtlng ili hisofl'lolat capacity as assistant. ' Held, 'that as the assistant secretai1eti' would such appeals, if that duty were $8s1gn,ed by the case of his absence or siQkn8Bs, (Rev. St. $ 161; 177, 1'(9, 288, 245,) it mU'at be 'presumed, in the absence of a' contrary show.' Dg, ttiat appeal·was lawfll11y decided. '
of In the omoe of 01 the, treasury 'as may be prescribed by the seQretary or by lllow." does not conline the powers of the assistants to the duties of a like nature withthos8 here I$numerated,. '", i161 and 177, more .. ...g..;...A.'PP'BAt' :nOM " . , " A d'8ei8ion'b)'"tI1e secreta.ry:of 1h&,treasury that he will not entertain an appeal: ,. ,the tqr. c\1stoms, bee,aU88 the prQtellt, was, DOt filed in 'tiIne, I. a i\olOtsion "Or). the a eal;," within the meaning of Rev,' St.' 1 293t, whIch , requiressuit'1lO be broUght.::W lohil1''lIO day. after such decnsIon. : ", . · " When an appeal from the. cQUeQtor, of custQms is lawfully pending before the : trellBul'j' departlnent,the s8Ci1etiary ·has authority to deternrlne the ,same at any ' .. ' ip:Iporter; nor is he required tonotity the latter ", , of thE! result .his deCISion. 45 Fed: Rep. 778, aftirmed. , t' "B.ul:m-:-AOTION: '1'0 REooVERD1JtttlIS-EllTOPPEL. ' " (,i A lluitagaill11t a ,QOllector:of culltomSjto reQOver duties paid, is praotlQally a suit against the UniWd States; and, as the governme\lt is not bound by an estoppel, - the fact thilt tbeboliectdr did-hot !lotitjr the importer of an adverse deQision by. the · ,secretary of the treasury upon the im'porter's appeal does I\ot prevent,tbecollector ;fromlletting,,up as a defen,88 that. the sujt was not brought within 90 days from 'that'decfsion, as required by Rev. at. 9'2931. 45 Fed. Rep. 778, aftirmed. I. 8ul:B-EsTOPPEIt-ABSIGNMENT OP CLAIM. ' , An paf80perates onl1 bl. favor of the persoD aotually misled, and an , 'assignee of' aolaim for dUties'PILld" ilannot rely upon an estoppelalleged to arise fromaQts of, the'CQl1eotor whiohmisled .the assignor. .' An ,of an unllqui4ated cla\lD for duties alleged to have been illegally , exacteaoonll.ot'maintBin a suit thereon against the oollector,forthe assignment " :ofsUQll<. pl$jm "9id undef Rev. at. 1 3477. , '
'I,SA,ME, ,:; ,,' :. , ' ' " ",' ;'., ,,;;.., "
"'ambia let1lertii !colltt'&ctil;ailc)'warrlill.ts preimred for tb:e41lgnature of the secretary
Rev. St. , U$,'pro:viding that the l!ossistant secretaries of the treasUry "llhall &x-
Court of the
.· _ . : ,
THE JOHN SHILLITO CO. fl. M'CLUNG.
Action by the John Shillito Company against David W. McClung, as surveyor of customs, to recover duties paid. A demurrer to the sec. ond amended reply was sustained, (45 Fed. Rep. 778,) and thereupun the plaintiff's petition was dismissed, with costs. Plaintiff brings error. Affirmed. Mortimer Mathews, for plaintiff in error. John W. Herr(Yfl" U. S. Dist. Atty., and Henry Hooper, Asst. U. S. Dist. Atty., for defendant in error. Before JACKSON and TAFT, Circuit Judges. J ACKSoN,Circuit Judge. This is an action at law, brought by the plaintiff in error, a corporation organized and doing business under the laws of Ohio, as assignee of John Shillito & Co., a firm oLimporters and dealers in dry goods, formerly doing business in Cincinnati, against the defendant in error, as the surveyor of customs for the United States at the port of said city, to recover the sum of $232.75, with interest thereon from October 4, 1881, as an alleged excess of customs duties paid under protest by the said John Shillito& Co. on the importation of an invoice of wool knit goods of the dutiable value of $1,041, which arrived and were entered at the customhouse in Cincinnati on September 16, 1881 ,and on which the defendant assessed and collected of said importers a total duty of $597.10, being at the rate of 50 cents per pound on the invoice, amounting to 465! pounds, and 35 cents ad valorem in addition, wh,en, as it is claimed, the legal duty thereon was only 3364.35, making the alleged excess of $232.75, which said firm of John Shillito &Co., having paid under protest, October 4, 1881, and on. the same day appealed from the decision of the collector to the secretary of the treasury, thereafter assigned to the plaintiff in error, who commenced this suit on Decembet 19, 1882; to recover the amount-oF such excess, with inttJrest frorp the date of payment thereof by· its assignors; The defendant set up by way of defense to the suit that the of the treasury, on the 10th day of December, 1881, had affirmed said assessment of duties made by defendant, and and decided said appeal against the importers, .and that the plaintiff did not bring suit for the recovery within 90 days after such decision, as required br aection 2931, Rev. St. U. S. To this the plaintiff filed a reply and amended reply, which the defendant demurred to; but these pleadings are not set out in the transcript of the record under stipulation of the parties, which recites that they were superseded by the second amended reply, and amendment thereto. This second amended reply alleges that on or about the 2d day of November, 1881, the defendant informed John Shillito & Co. I (plaintifl"s assignors) that the secretary of the treasury had declined to entertain the appeal on said alleged excessive assessment, together with two other appeals made by said firm, on the ground that the protest thereon had not been filed within the time required by law; tbat afterwards, on or about December 4, 1881, the defendant informed said firm· that the secretary of the treasury had, upon a second
8,1881,in regard to said three
-appeaU,otevoked ,his said actipain :refusing to 'entertain' two or said;
IpefJ.Is/!8rl<i had <1eCidedthe sameibut had not changed his conclusion in respect to, tbe;appeal as. to the:aJleged excess on theassessmeIlt .inquestiou; that thereupon, without the knowledge or request of John ShillitQ & Co., and without informing,· said firril,the defendant made such reports to thesecretar, of the treasury, as to errors in his original report touching said protest and appeal,as convinced said secretary that the protest had bep.n duly filed, and thereby led the secretary of the treasury to revoke his determination not to entertain which was taken up and deciUed, as in the answer, Decen:'ber to, 1881; that defendant did not, until this action was brought, ,infQrmJohn ShiIJitci&Co. of said decision, althuugh said firm, by theiragellt duly authorized in the premises, was during the whole of said tiloe daily in defendant's office, transacting Lusiness with defendant in respect to other similar protests and appeals; that, during the whole of said, time, John Shillito & Co. were ignorant of said decision, and relied solely upon said representations on the one hand, and said silence on the other, as being an assurance to said firm that the limitation of 90 days, set up in the answer, had not begun to run against the claim set up in. the petitiouj that; in maintaining said silence after said representations and conduct"dej(mdnnt was grossly negligent of the rights of John Shillito & Co. jltnd that it was solely on account thereof that said firm did not bring this action within 90 days after the rendering of said decision. To this second amended reply the defendant demurred because, the matters set up in avoidance of the answer were equitable, and· not legal, and because the same were. insufficient in law. The .court below sUl!tained this demurrer upon the second ground thereof. Thereupon the plaintiff, by leave of the court, filed an amendment to its second reply, setting up that the secretary of the treasury having on November 2, 1881, declined to entertain the appeal set forth tbe petition, on the sole ground that the protest had not been filed within. the time required by law; that on or about December 4, 1881, said secretary refused to reconsider his said action in declining to entertainsaid appeal, and to decide the same; that afterwards, on or about December. 10, 1881, without any further action on the part of John Shillito & Co. or the plaintiff,and without their knowledge, consent, . or request, and without notification to them, either before or after, untUafter the bringing of this action, an alleged decision of said appeal, upon its merits, was made, which it is alleged "was made without authority, power, or jurisdiction to make the same, and was totally void andoi no effect." It is further averred that said decision was 110t made b,ythesecretaryof the treasury, as inadvertently stated in plaintiff's second amended reply, or by any other officer or person acting as and for said secr.etaryof the treasury, but by the assistant secretary of the treasury, at'ting'iinhis official capacity as such assistant secretary only, and-was on :that account unauthorized and void, and of no effect. To this thedefeudant also interposed a clemurrer, because it did not state
THE JOHN SHILLITO CO. V. M'CLUSG.
mcts'sufficient,toconstitute a good reply to the answer. This demurrer Was sustained by the court, and thereupon the plaintiff's petition was dismissed, with costs of suit. The present writ of error is prosecuted to reversethisjudgment of the circuit court, and the grounds assigned in support thereof are that said court erred in sustaining the demu:rrer to the second amended reply, and the amendment thereto, and in dismissing the suit with costs. ·The propositions relied on by counsel for plaintiff in error to sustain the contention that the matters set up in the second amended reply, and in ,the amendment thereto, presented a valid reason or excuse for not bringing suit within 90 days, or in avoidance of thlitdefense, are the f611owing, viz.: (1) Thatthe assistant secretary of the treasury had no jurisdiction to decide said appeal of John Shillito & Co., and that !laid alleged decision was therefore void, and of no effect; (2) that the tary of the treasury, after having twice declined to entertain said appeal, had thereafter no power or jurisdiction to decide thesamellpou its merits without the further action, knowledge, consent, or ,request of the importers who prosecuted, the same, and that in 80 doing the decision was void; (3) that, the defendant was estopped from denying that the plaintiff's action had not been commenced within 90 days, after ;the decision of the se<;retary of the treasury, as required by section 2931, Rev. St. It is claimed that if either of these positions are correct. the judgment oithe circuit court must be reversed. The averment contained in the amendment to the second amended reply, that the appeal waR decided not by the secretary of the treasury, but by the assistant secretary of the treasury, acting in his official capacity as such Rssistant secretary only, "and was on that account unauthorized and vojd, and of no effect;" includes an allegation of fact and a conclusion of law. The latter is, of course, not admitted by the demurrer, while the former is to be taken as true; and presents thequestiqn raised by the first proposition, whether the assistant secretary of the treasury, acting in his official capacity as such,had, or is presumed to have had, the requisite authority to decide the appeal of the importers. It having been found impossible for the heads of departments to perform, in person, all. thl;l duties imposed on':them by law, the office ofassistantsecretary was created 101' all the departments. In the treasury department, two of such assistant secretaries are required to be appointed by the president, by and with the advice and consent of the senate. "The assistant secretaries ofthe treasury shall examine letters, contracts, and warrants prepared for the signatilre of the secretary of the treasury, and perform such other duties in the office of the secretary of the treasuryas may be prescribed by the secretary or by law." Section 245, Rev. St. By section 161, Id., "the head of each department is anthorized to prescribe regulations, not inconsistent with the law, for the distribution and performance of its business;" and "in case of the death, resignation, absence, or sickness of the head of any department, the first or sole assistant thereof shall, unless otherwise directed by the president, as provided by section 179, perform the duties of such head
FEDERAL REPORTER,. vol.
until a successor is app<rinted or such absence or sickness shall cease." 8eetion 177, Id. By section 236, "all claims and demands whatever by United States; or against them, and aU accounts whatever in which the United,States are concerned, either as debtors or as creditors, shall be settled and adjusted in the department of the treasury." It admits of no question that under the forep;oing provisions the secretary of the treasury could have assigned to the assistant secretary or secretaries of the treasurydepartment·the duty of deciding appeals from assessments made by collectors ofcustoms dutie!'l; nor can it be doubted that, in the absence or sickness of the head of that department, such assistant secretaries have lawfully performed his duties in respect to such matters which have to be determined, settled, and adjusted in that department. The reply does not negative the fact that the assistant secretary was not assigned by the secretary of the treasury to the performance of the duty of deciding the appeal, nor that there was no absence or sickness of the head of the department which devolved the duty upon the assistant secretary. Under such circumstallces,is the want of authority to be assumed, or will the law raise a presumption to the contrary in support of the official act? We are clearly of the opinion that the latter is the rule to be applied. In U. S. v. Peralta, 19 How. 347, it is said by the supreme court: "We have frequently decided that · the pUblic acts of public officials, pur· porting to be exercised in an ofllcial capacity and by public authority. shall not be presumed to be usurped. but that a legitimate authority had been previously given Of SUbsequently ratified/To adopt a cOlltrary rule would lead to infinite confusion." In Parish v. U. S., 100 U. 8. 500, it was held that the acts of the as,sistant surgeon general were to be treated 'and regarded as the acts of the surgeon general; the court ,saying: . , "The office of surgeon general is one of the distinct or separate bureaus of the administrative service of the war department. It has been found in regard to many of these .burealls, and even to the heads .of.departments. that it is impossible for a single individual to perform in person .all the duties imposed on him by. his office. I:Ience statutes have been made, creating the office of assistant secretaries for all the heads of departments. It would be a doctrine. and SUbversive of the purposes fOr which these latter were created, if their acts are to be held ot no force until ratified (or authorized) by the principal secretary or head of department." In Chadwick v. U. If Fed. Rep. 756, it was held that acts of assist· ant secretaries of the treasury are presumably authorized, under sections 177 and 245, Rev. 8t., until the contrary is shown. And in U. S. v. 4dams, 24 Il'ed. Rep. 348, it was held that"The assistant secretary of the treasury is not the deputy of the secretary, but only his aid; and his will be presumed to have been performed by a,uthority of the secretary, under sections 161 and 245. Rev. St., or under see· 177, until the contrary appears," We think these authorities state the correct principle to be applied to the action of the assistant secretary in the present.case. It not appear-
THE JOHN SHILLITO CO· .,. M'CLUNG.
ing to the contrary, his authority to decide the appeal must be presumed. We do not deem it necessary to review the authorities cited by counsel for plaintiff in error to show that the duties of the assistant secretary of the treasury are limited and confined to matters of a like nature and character as the examination of letters, contracts, and warrants for the signature of the secretary of the treasury. That specific enumeration of duties in section 245 does not control the further provision that he shall "perform such other duties in the office of the secretary of the treasury. as may be prescribed by the secretary of the treasury or by law," especially when the latter is read in the light of sections 161 and 177, Id., which impose more enlarged duties in certain contingencies. We think there is no merit in the first proposition relied on. In respect to the second position, that the secretary of the treasury" having on November 2, 1881, declined to entertain the appeal, and on: December 4, 1881, refused to reconsider his action in that regard, had, no on December 10, 1881, to decide the same without further action all the part c;>f John Shillito & Co., and without any notification to them or the plaintiff, the question is presented whether such actiqn. on the part of the secretary operated either as a dismissal of or a deci-' sion against the appeal. Until withdrawn by the importers who prose-· euted it, or dismissed.. for some cause, it was still pending before the' department for decision, and the secretary of the treasury was invested: with, the requisite jurisdiction to decide the question presented. If the fact of declining to entertain the appeal in November, 1881, on ground that the protest did not aopear to have been made in time, and of refusing on December 4, 18bl, to reconsider said action, did exhaust the secretary's authority over the subject, deprive him of the right upon further examination or better information to further con':. sider the matter, reach a different conclusion as to the regularity of the: protest, and act upon the appeal, there was then, in legal effect, a dismissal of or ad','erse decision on the appeal. Counsel for plaintiff in error has presented a very elaborate and highly technical argument tOo establish that, as the secretary of the treasury was exercising a judicial orqua8i judicial function in respect to the appeal, his refusal to entertain the same when presented was such action or decision as ex.; hausted or terminated his jurisdiction. If that view of the question is correct, it will be difficult to escape the conclusion that such refusal, based upon the ground that the protest had not been made within thetime req uired by law, was such a decision against the im porters as entitled them to bring suit within 90 days thereafter. The reason fof' the refusal might well be regarded as an adverse decision on the appeal, which was purely a statutory right and remedy, requiring the making of the prescribed protest in order to the consideration of the· claim upon its merits; The dismissal of appeals in cases of this char.. acter for failure to comply with the statutory prerequisites is as much an adverse decision as one rejecting the claim presented. It will not, therefore, avail the plaintiff in error to say that the act of the secretary in' at first declining to entertain the appeal, for the reason alleged,.
deprived.him of aU authority thereafter! toconsidar ijl)gdE:cide. itupoI;l other ground, called the merits; is so,· there was an adverse tlecisionhgahist the appeal ,in Noven1ber, 1881 j .o;t>which the importers had. informa tion. Ontheother;hand,if,the temporary refusal to entertain the appeal did not amount to such'decision thereof as exhausted or terminated the secretary's authority in the prem';ses, then it remained pending in the department for such decision, and there wa.s lawful authority for therealteracting upon: it. The importers, as it is aHeged, were informed ,that in two other appeals the spcretary hael reconsidered his declination to entertain the same, and had th,erea/ter decided them. He had not informed them.that he would not pursue the same course in reference to the appeal hI question. The law (section 2931, Rev. St.) eleal'lly'contempla:tes that there ,may be delays in the disposition of suoh :appealS, and provides thatin any court for the, recovpryof Rny duties or ilIpgaU.vexacted' until the decision of the secteUtryot',tlietre-'\suryllhallh8ve been Orst had on such appeal, (not necessarilY:IIJlOI1: the ml'rits' oMhe claim involvPd,) unless the decision of the SI'Cshmlt be: delayt'd ,tban ni pays from ,the date of such appeal, in4aseqf'''In;tW,try. ilt the mountains, or more than ,five months of an those mountains." ;, point involved, it is said in Amsonv. 238; 3 Sup; Ct. Rep; 184, that-' ',' ,, commencillg .this action is within ninety of the trea.sury on appeal, but Uthe secrptarY,JI'1i1 to 'adl'cision within ninety days the. importer has the begin suit, treating the delay as a denial, or to wait the decision and Iluewithin ninety days thereafter." "No
In what is:, there said, .and under the language of the statute, the secretary's decision Ilon",the appeal" is not restricted toadecision on ihe merits oftha claim thereby presented, but includes his decision on the sufficiency of ,the appeal itself. ,If he should decide the appeal to be insuffioient for noncompliance with the requirements of the statute, and refuse' to- consider the same, the illl porter would have to commence suit: within 90 days thereafter. , ,The plaintiff in error is, therefore, iril;hisdilemma:lf the action of the secretary on November 2, 1881, in declining to emtertain theappeaUor thereaBon that the protest was not made in time, was such a decision On the appeal as exhausted his authority over the matter, then suit should have been brought within 90 days from that time. If such action did not operate as 11 decision on the appeal, then the matter WaS still 8ub judice before the department, with the right on the part of the importer to bring suit within .90 days after December 10, 1881, when it was decided upon its merits. The statute does not provide for any notice to the importer as to when the,:secretary will act upon the appeal, nor as to the result of his action·. ;The. secretary's authority toa()t while th6
THE JOHN SHILLI1'O
appeal is still pending is in no way dependent upon the knowledge or reqUE>st of the importer in the premises. The cases relied on by counsel for plaintiff in error, of which Floyd Acceptances, 7 Wall. 666, and U. S. v. Alexander, 110 U. S. 325. 4 Sup. Ct. Rep. 99, are examples, holding that, when quasi judicial action is had by officials of the government, such action cannot be revoked, where the rights of others are involved, have little or no bearing Upon the question under consideration. They certainly do not sustain the proposition contended for, as applied to the facts. set forth, under the statutory provisions relating to the subject. The third and last ground of reversal urged is that the dellmuant is estopped from setting up the defense that the suit was not commenced within 90 days alter the decision of the secretary of the treasury. The matters relied on as constituting such estoppel are that defendant, having informed the importers in November and December, 1881, that the secretary had declined to entertain their appeal, and also to reconsider his action in respect thereto, did not thereafter, until this suit was said importers of the decision of the appeal made by brought, the secretary on December 10, although their agent during said period, daily in defendant's office, transacting business with him in respect to other similar protests and appeals. This silence of the defendant after said representations and conduct, it isclnimed, was gross negligence on defendant's part of the rights of John Shillito & Co., "and it was solely on account thereof that said firm did not bring this action within ninety days ai ter the rendering of said decision." In the consideration of the question thus presented the lact should not be overlooked that the defendant is sueu, as he was dealt with by the importers, in his officinl character undcaplloity, nnd that his liability ,if anYI is purely statutory. "The common-luw right or action against a collector to reco\'er back duties illegally collected is taken away by statuw, and a remedy given bnsed on statutory liability, which is exclusive." ArnBon v. Murphy, 109 U. S. 238, 3 Sup. Ct.Rep. 184, where the legislation on the subject is reviewed. It should be furthermore borne in mind thnt "the action is, to all intent and pllrpost', with tho provisiolls for refunding the Illoney if theim porter is success ul in the suit, an action against the government for moneys in the treasury." Auffmordt v. Hedden, 137 U. S. 329, 11 Sup. Ct. Rep. 103. As a suit against the United 8tates. through or in the name of theircollt'cting agentoroffil'er, the doctrine of e3toppel can properly hnve no application to the case, for the reason that the gO\'ernment is not ordinal'i1ybound by an estoppel. .Johnson v. U. S., 5 lVlnson, 4:.l5, and Cnrrv. U. S., 98 U. S. 433. In the latter case, upon a bill tiled by the United States to quiet the title to certnin lots in its possession, the defendant Bet up, by way of estoppel, certain judgments in ejectment rendere.d' by the stilte courts at the 8uit of hill grantor against otlicers of the government. then in possession as its agents. in whose behalf the district ilttorney and other collosel, employed by the secretary of the treasury, appeared. It was held that these facts constituted no C:'stoppel agnillst the government. The 8Upremecourt there say: "The United States cannot be elitopped by pro-
eeedings agaiast itsteoants or agents, nor be sued without its consent given by act of congress." Treating the present action as a proceeding, not against the individual, but agll-inst the official through whom the government permits itself to be sued for the recovery of money in its treasury, it is perfectly clear that the matters relied on constitute no estoppel. Individuals as well as the courts must take notice of the duties imposed and of the extent of authority conferred by law upon a person acting in an official capacity. Whiteside v. U. S., 93 U. S. 247. It is settled by the case of Amaon v. Murphy, 115 U. S. 579-586, 6 Sup. Ct. Rep. 185, that no duty or obligation rests upon the officers of the government to give notice to the importers of the decision of the secretary on the appeal, which is a matter of record in the treasury department, and ordinarily comJUunicated to the collector by letter, which is preserved or recorded in tb.ecustomhouse. "Inquiry there, or at the treasury department, would elicit information on the subjectj and the importer,knowing when the appeal was taken, can always protect himself by bringing his theexpiratiol) of the time named after the appeal, although he baa not heard of a decision, being thus certain that he will have brought it within the time prescribed after a possible decision." Amaon v. Mv,rphy, 115 U. S. 584, 6 Sup, Ct. Rep. 188. The plaintiff in error does not bring itself within the question reserved in that case, that in any case it should appear thl1t, upon due inquiry of the proper officers, a party had been misled to his prejudice in regard to a decision on an appeal, a; different question would be presented from any now before USj" forit is not alleged that any inquiry whatever was made, either of the the defendant, as to the appeal or the decision thereof. The doctrine of estoppel always presupposes error without negligence on .one side, anli gross negligence or fraud UpOB the other, and that it would be inequitable for the party against whom it is asserted to take the advantage. Brant v. Iron 00.,93 U. S. 326; Morgan v. Railroad Co., 96 U. S.716. The representations or information that defendant made or gave were ·oot untrue or mialeading, and his silence, when upder no duty or obligation to speak, cannot possibly constitute an estoppel, even if the snit was against him as an individual. No authority cited establishes an estoppAl under such conditions . .But aside from this the estoppel set up was one in favor of the imJohn Shillito & 00. "An estoppel in pais does not operate in [fwor of everybody. It operates only in favor of a person who has been liPisled to his injury, and he only can set it up." KetChum v. Du/(wan, U. $. 666. If, therefore, there was any estoppel arising out of the qlatters relied on, it one in favor of JohnShillito &Co., who, it is misled or remained in ignorance of the decision on the apconsequence of defendant's i\ilence. The benefit of that estoppel, .did not pass to. the plaintiff in error upon the assignment to it of VIle· claim for the exceasive,duties paid by John Shillito & Co. Matters of estoppel are personal,a.nd. are not No right of action based upon a fraud or groSS neglige11ce implying bad faith is transferable
UNITED STATES ". ONE SORREL STALLION AND ONE ROAN HORSE.
<>r assignable. The plaintiff in error, as the assignee of John Shillito & Co., cannot set up or assert the estoppel, if any, which may have existed in favor of said firm. There is another fatal objection to the right of the plaintiff in error to maintain this suit: The claim on which it is founded being one against the United States, which had hot been liquidated and allowed, could not be legally transferred and assigned by John Shillito & Co. to the plaintiff. Said assignment was void under section 3477, Rev. St. U. S. U. S. v. Gillis, 95 U. S. 407; Erwin v. U. S., 97 U. S. 392; Phelps v.MeDemald, 99 U. S. 298; and Goodman v. Niblack, 102 U. S. 556. It follows that plaintiff in error, as assignee, can maintain no suit on said -claim. We find no error in the judgment of the circuit court, and the flame is accordingly affirmed, with costs.
UNITED STATES V. ONE SORREL STALLION AND
(District Oourt, S. D. Oalifornia. August 29, 1892.)
OUSTOMS'DuTlES-VIOLA.TION Oll' LAWS-FoRll'EITURES.
Rev. St. §§ 8098 8099, providing that every person coming from a foretltfl country adjacent to .the trnited States with dutiable merchandise shall deliver a vedfied manifest of it at the nearest collection office. on pain of forfeiture of SUch merchandise, applies to a horse and stallion borrowed temporarily from a across the Mexican line, the one for herding stock and the other for breeding purposes; the latter not coming within the clause of Act Oct. I, 1890, (SUpp. Rev. lilt. P. 812,) admitting free certain thoroughbred duly-registered horses. In the absence of a petition for the remission of the forfeiture. under Rev. Bt. 5 5292, it was immaterial whether or not a deputy collector told the parties ,that the horses were not subject to duty, since such deputies have no authority to waive the requirements of tbe law, and since Act June 22, 1874, (18 St. at Large, p. 189,) § 16, requiring the court not to impose the forfeiture when there was no intent to defraud, was repealed by the act of June 10, 1890.
SAME-EVIDENCE Oll' INTENT-REMISSION ,Oll' FORFEITURES.
At Law. Libel to enforce a forfeiture under revenue laws. ment of condemnation. J. L.(Jopelund, for claimant. M. T. Allen, U. S. Atty., for the United States,
Ross,District Judge. The libel in this case is to enforce the forfeiture ,of two horses, under the provisions of sections 3098, 3099, Rev. St. So far as necessary to be stated, they provide, in effect, that every per. son coming from any foreign territory adjacent to the United States into the United States with merchandise subject to duty shall deliver, immediatelyon his arrival within the United'States, a verified manifest of the merchandise so brought from such foreign territory at the office of .anycollectol' 01' deputy collector which shall be nearest to the boundary line,orhearest to the road or waters by which such merchandise is brought; and it is provided that· if any person bringing such merchan-dise,$bil.ll neglect or refuse to deliver such manifest, or pass byot avoid