SCHMIEDER V. BARNEY.
657
The records which are introduced here, kept under those regulations are, under a familiar doctrine of law, compete,nt and admissible evidence and proof of their contents, without the testimony of the individuals who made the particular entries in them. They are the only evidence at all touching these two entries which there is in this case, as to the date of delivery. They show specifically, by the numbers of the cases themselves, and the, particular dates given, the dates upon ;which theywere delivered to the .importers, some time in July or August; of course, if that stood' alone, being the only evidence in the case, the verdict could only be one way. If it should be left to the jury to determine what the fact as to delivery is, upon all the evidence here, and they should find for the plaintiff, would the court be j'JJ.stified in sustaining their ver. diet UPOll a mot,ion tQ set it as being against the evidence? ' I do not think that I would. There is nothing to contradict or impeach the authenticity or accuracy of these entries in any way, except, as plaintiff claims, the fact which is in proof, viz., that the duties were paid on the twentieth of November: From that the plaintiffs contend that, there being a presumption that a public officer discharges his duty, and that the collector does so himself, or through all his various subordinates, each discharging in his own sphere the particular functions which are given in the aggregate to thecollector:-under that presumption, and in view of the fact that the law required the payment of duties in cash, it must be assumed that the goods were delivered on or after the payment made on the twentieth of November. The application of the doctrine of presumption cannot be carried so far, in the absence of anything at all to impeach the.accuracy of the records produced here as to concede that it might control the direct proof as to the date of actual delivery. I should therefore' feel constrained, if the verdict of the Jury were for the plaintiffs on· that issue, to set aside their verdict as being against the weight of evidence; and for that reason shall direct a verdict for the defendant, on those two items, and give the plaintiffs an exception. The plaintiff claims the right to go to the jury on Exhibits 65, 41, 45, and 46. I shall leave those to the jury, and as to all the others shall direct a verdict for the plaintiff.
, SCHMIEDER
and others v.
BARNEY.
(Oi'f'cuit Oourl, S. D. New YQ1·k.
November 4, 1887.)
CuSTOMS DUTIES.:...ACTION TO RECOVER-PRACTICE.
In an action against a collector of customs, to recover duties, the defendant, on his motion, obtained an order of· the court requiring the plaintiffs, within a specified time, to serve a bill of the particulars therein enumerated of their claim, and that, in default of such service. the defendant should have Judgment of non p'f'08. against the plaintiffs, provided that, on the proof by them of certain circumstances, and on their compliance with the condition! then prescribed by the order, they should not be required tofurnish such bill.
v.32F.no.l0-42
658
,FEDERAL REPORTER,
More than three years having elapsed the time for the service there,of, and no bill meanwhile having been served, the defendant noticed a, second motion· for such bill, and. in def8;ult of' the service thereof within'five days; for. judgment of non pr08. against .plaintiffs; and the plaintiffs noticed a counter-motion for the production of certain papers. under Rev, St. 'U. 8. § 724 and, on the failure of their production. that this action be continued, and not placed on the day calendar of the court for the trial of causes. Upon theargumept of these motions, which were heard together, the plaintiffs prod\lced certain affidavits, which, they claimed, showed, besides other things, the existence of the circumstances mentioned and a substantial compliance by them'withthe conditions prescribed by the order for the nonljervice of the'bill. The court held that the plaintiffs had not shown the existenCe of these clrcumstan<:es, and ;herefore had not complied with these conhave omitted through some excusable negligence ditions; but, as they to state in their affidavIts the facts showing the existence of such circumstances, extended the plaintiffs'. tim,e to comply with the terms of the order for the bill five days from the date of the service of an order granting this exten, sion, but ordered that in default of such service, and on proof thereof,the defendant should have judgment of nan pros. against the plaintiffs. (8yllabua by.th6 Oourt.)
Action to LRecover Excess'of Duties Paid under Protest. On cross-motion, the one for bill ofparticulars, and the other for productionof custom+house papers under Rev:. St. U. S. § 724.' Stephen G. Olarke, for plaintiffs. . Stephen A.Walker, U. S. Atty., and Thoinaa Greenwood, Asst. U.S. Atty., for defendant; LACOMBE, :J. This is a consolidated action. The several original ac· tiona were begun atvari.oustimes in 1863 and 1864, the defend,antduly appearing in each, and demanding a copy of the bill of particulars of the plailitiffs' demand therein. No bill of pairticulars has ever been served.; On ,June 9, 1883, defendant moved; upon affidavit, fora bill of particl;llars, or, failing' the service of such, bill, for a judgment of non again'st the plaintiffs. After argument, the court, (Hom AnDISON BRowN,sitting as circuit judge',) on June 26,1883, orderedl,that plain'tiffs sEirveabill of particulars giving certain enumerated items, within 90 :days after service of the order and notice of entry on plaintiffs' attorney; and further ordered that, in default of 'subhservice, and; on due notice thereof, defendant have judgment of non pro8, against the plaintiffs. This last clause of order, howeyer, was coupled with a proviso that it should, under certain circumstances, be inoperative. These circumstances are thus described in the order: (1) If the plaintiffs, thr(lugh the loss,or·destruction of their books and papers, or other cause, shall be actually unable to furnish the particulars required, without an il}spectionof the invoices, entries, and protests on file in the custom-house; and (2) stJall serve an affidavit in this action upon defendant's attorney, or upon the present collector, stating that fact, and. the reason of such inability; and (3) shall serve upon the c.ollector a request,in for permil;lsion to inspect such invoices, etc., [the details.of the request .need not be plaintiff shall not be required to fumish the pal'· ticu]arshereinabove ordered. ..' "
1.See 6 Fed, Rep, J:50, and note.
sClIMmDER.
v.
659
The order of Judge with notice of entry, was served on plaintiffs' attorney on July 31, 1883 j and the 90 days limited therein have long since expired. On December 12, 1883, an affidavit of the plaintiffs' attorney was served- on the. district attorney, and apparently about the same time on the collector. It refers to this action, and to two others, and states "that he [plaintiff's attorney] has endeavored to procure the particulars required by the order of this court made in said actions on the twenty-sixth day of June, 1883, but without success, owing to the fact that the plaintiffs, at the times the importations referred to were made, composed firms which have long since passed out of existence, and all their books and papers referring to their importations at that period have been lost or destroyed." On October 21,1887, and on several occasions prior thereto, plaintiffs' attorney served on the collector a request for an inspection of the invoices, etc. The terms of these requests need not be considered, as they are practically conceded to be in substantial compliance with Judge BROWN'S order. On October 2, 1887, notice of a further motion for bill of particulars, or in default of service thereof within five days, then for judgment of MnpTos:,was given by the district attorney. On October 26, 1887, the plaintiffs made a counter-moti0ll, under section 724 of the Revised Statutes of the United States, for the production of papers from the custom-house, or, failing such production, that the cause be continued, and not placed on the day calendar. These last two motibns have now been heard, and will be disposed of together.. The order made on June 26, 1883, is apparently controlling of these applications, unless plaintiffs have put themselves in a position to avail of the relief accorded by the proviso. Upon the papers, they do not seem to have done so. They were required to serve an affidavit, stating their inability, and the reaS0n8 of BUck inability. The only attempt to comply with these requirements is the submission of the affidavit of plaintiffs' attorney above quoted from. Evidently the deponent has no personal knowledge of the loss or destruction of plaintiffs' books, and it may well be doubted whether an affidavit which does not set forth the efforts made to obtain it is in sufficient compliance with the second not clause of Judge BROWN'S order. Manifestly, the learned judge mean to provide that plaintiffs who might be able to obtain the necessary information from their own books and papers, but declined to do so, because they were unwilling to take the trouble of searching for them. might be excusedJor a failure to comply with the order. What he did mean, undoubtedly, was that the plaintiffs might, by making out such a case as would upon a trial entitle a party to introduce secondary evidence of the contents of a book or paper, excuse themselves from furnishing a bill of particulars without assistance from the files of the customhouse. This 'affidavit, however, is very far from making out sl1ch a case. Simp8oitv.DaU, 3 Wall. 460j and see the authorities cited in Keameyv. Mayor, etc., 92 N. Y.617. It is to be fq·rther noted thatthelearnedjudge has not only required that aD affidavit of loss or destr\lotion be The proviso is <:qndi-
e60
nOEnAL BEl'ORTER.
tioned on the fact that ("the plaintiffs, through the loss or destruction of their pooks and papers,ar other cause,shall be actually unable to furnish the particulars required," etc. When the right to avail of the proviso is claimed, confomlity with the condition 'on which it was granted must be shown to the satisfaction of the court. Besides the affidavit of the plaintiffs' attorney, there has been presented on motions an affidavit of Louis E. Schmieder, one of the plaintiffs. In this he states that, at the time of the transactions which are the subject of this suit, he was the resident partner here; the other plaintiffs, Charles E. Schmieder and Frederick Schmieder, remaining abroad. That in 1868 the firm was discontinued, "and all their books and papers, being necessary for winding up and settling the accounts of said firm. were then sent to the main house, in Germany." , Deponent then adds that" he verily believes that nOne of the records or books of said house showing their importations during the years 1863 and 1864 are now in existence." He wholly fails to state the grounds for such belief, or to show that at,;:my time during the past 20 years he has made any effort to find them. Moreover;, the very affidavit of Louis E. Schmieder shows that the books and records, of the firm were last in the possession of the other two plaintheirs, sworn or unsworn,.is offered to account tiffs. and no for them. Such proof as this wholly fails to comply with the letter or the spirit of'JUdge BROWN'S order, and is insufficient to entitle the plaintiffs to claim the benefits of the proviso. It may be that they have in fact made proper and diligent search for books and records which have been lost or destroyed to their misfortune, and without their fault; and that they have omitted. through some excus. able neglect, to state the facts in their affidavits. The time within which plaintiffs may comply with the terms of Judge BROWN'S order of June 26, 1883, is therefore extended five days from the date of service of this order on their attorney. Failing to (lOmply within that time, the former order will take, effect, and, upon the filing of ap affidavit of non-service of the bill of partioulars, defendant may have judgment of non pros. This disposition of the case will, of course, dispose oitha other motion,which was- argued at the same time, and no decision thereon need be made.
, POTTS,
Assignee, v.IlA.HNand others.
(Di8,trict Oourt, D. New ,Jersey. Octeber29; 1887.) PLEADiN'G-'-MW,TIF
In a suit ,brought by an assignee of a bankrllpt against 'several parties, the aUeged facts showing that they were ",U c.onnected with fraudulen t undertakmgs for thepllrpose of preventing the bankrupt's property from reaching the assignee's control, but,showing alsa'that the defendahtswere not aU connected with each fraudulent; act, but that some of them performed one act, and some another, allte,nding to the Same result., Held" upOl).demurrer on the ground of multifariousness that the complaint the defendantS joined in the common fraudulent purpose. .., '. . ...
FRAUDULENT CONVEYANCES. '
