FE])E:RAL REPORTER, vol. 48. was merchandise, within, the meaning of sectiol) 2873 of the Revised Statutes. This question was decided by Justice STORY in U. S. v. Chain Cable, 2 Story, 362, against the United States. He held that appurtenances or equipments of a ship are not merchandise. I find no authoritytothe contrary. On the other. hand. the defendant's counsel has cited several authorities tending to establish that merchandise includes only,cal'go. Myco.ue.Lusion is that the judgmentu:lust he in favor of the defendant. ;!
(O(rcuit Court, E. D. North. OaroUna. January 11, 18112.) IftBRIUL RBVBNU_TAXON SPIRITS-DISTILLBRY WAREHOUSES.
Rev. 8t. 5 8298. as amended by Act Congo March 28, 1880, requires distillers to f!ve a bond conditioned to., pay tbetax pn spi,rits, in distillery warehouses before removal" tberefrbm, 'or"witbiil three years from tbe date of tbe bond. Held. that the destruction of such spirits by fire. wbile in lhe warehouse, does not COthnBtitute 80 aa to make tile tax before expiration of the
reeyears.
At Law.. Action against James C. Peace and others upon a distillery ,boIid. , " , ' ! Ckarles'E; Cook, U.;S.Atty. T/uYmaa Strayhorn, for defendants· ,!
··'J. 'The actiohis'hrought on a ilistiller'swarebousebond . to recclV'eHhe tax on certain spirits destroyed byfire ill the warehouse. The fact of the destruction of the not release the, aistiller or his surety from liability for the tax. Farrell v. U. R, 99 U. S. 22l. The onlyquesti?n is whether the taxis payabl y immediately upon the or not until the expiration of three years from date of entry in the bonded warehouse. The present actiou, was the three years, and the question arisesnpon a specil;tl " " ,The boncJ Buit. ,like all others "If the same character, follows the phraseology,()f the statute" and is' conditioned for the. payment of 'the the spirits described in it Hbefore such spirits shall be refr6Iil,tHe, ",arehouse, I1ndwithinthreeyears, from the date of entry." The'contention is as to the construction of the words; "removed from suchw!1rehouse." The verb, "to remove,"bears usage ,two To cause a thing to change place, or to 'cause it to cease in the second meaning given,would include destruction :qy The doubt in the matter BUb lite does not, however, depend upon the'fibstract definition of th'eterm, but upon the question ofwhether by statute ,must not bea removal by the digtilierF'., 'The' :provisions,of the, tes relating to the bonding of disti1led'spHits 'iteemedmaterialt9.'the question ol <;onstr.1;1ction: underc9n.-
tJim'ED STATES f1. PEACE.
'115'
sideration are contained in sections 3248,3251,3271,8272,3274,3287, 32'd3, and 3294 of the Revised Statutes, and in section 4 of Act March 28, 1880, amendatory of section 3293, trWpra. See Supp. Rev. St. (2d Ed.) 286. Section 3248 provides that the tax shallatta{\h to the article of distilled spirits as soon as it is in existence; section 3251, that it is to '. be paid by distiller before removal from distillery warehousej section 3271, that every distiller shall provide, at his own expense, a house to be situated on and constitute a part of his distillery premises, and to be used only for the storage of distilled spirits of his own manufacture, which, when approved by the commissioner of internal revenue, is declared a bonded warehouse,' and shall be under the direction and control of the collector of the district, and in charge of an internal nue store;.keeper assigned thereto by the, collector of internal revenuej section 3272, that whenever the commissioner is of opinion that any warehouse is unsafe he may discontinue its use, and, require the mer· chandise therein to be transferred to some other warehouse j section 3274, (hat the warehouse shall be, in joint custody of the store-keeper and the proprietor thereof; section 3287, that all di8tilled spirits shall be drawn from the receiving cistern into casks. and be immediately removed into the distillery warehousej section 3293, that the distiller on the fir&t day of each month, or within five days thereafter, shall enter the spirits in the prescribed form, and give bond with surety, etc., conditioned to pay the tax before removal from the warehouse,' and within one year from the date of the bond; section 3294, that any distilled spirits may, on payment of the tax, be withdrawn from warehouse. By the act of March 28, 1880, distiller is required to pay the tax within three years from date of entry for deposit. The act further provideS---:' , "That the taxon all distilled spirits bereafter entered for deposit in diatiUery warehouses shall be due andpaya1)le before and at the time the sallie are withdrawn tht'refrom. and within'three years [rom the datto of entry for deposittherein ; and warehousingbondllbereafter taken under the provisionll of section Hev. St., shall becon,uitioned for the payment,of the tax before removal Irom tile distillery warehouse, and within three )'t'ars from' tile date of said bonds." , A collation of these sections leads irresistibly to the conclusion that the removal from the distillery warehouse spoken of must be 8 removal by or under the authority of the'pwner of the commodity. The tax attaches to the, article, and becomes a lien on it, from the instant that it comes into 'existence. For the, ,convenience of its owner, payment is postponed for three years, unless the owner removes it earlier. It is difficult to conceive that the destruction of the spirits by accident, and the part of' the distiller, would:OO made by congress cause for 'paymept of the tax. It is true that; the thing on ww<;b.gQv,ernment, haP for its dues being destroyed, its security is lessened, and made to depend on the solvency of tbedistiller and ,his' bond, and that between private parties such a conditipD of affairs would be considered an inducement, to ,collection. That such is not the way in which the between goverP.-
FEJ?ERAL REPORTER,
vol. 48.
mentand't4edistUIer mRy be fairly inferred froIh the legislation lonking to distiller's relief, when not in fault, in this class of cases. But I do not:think it.necessary tl) go beyond the words of the statute for the se.lsl:dn which the term "removal" is used. Section provides for a transfer in certain cases from one warehouse to another. Evidently the tax would not be at once due on such a removal. Section 3294 uses the as the equivalent of" remove." "The distilled spirits word Inay, on paymentof the'tax, be withdrawn from," etc. And amended section 3293,. after, saying that the tax shall be due before and at the time the spirits are "withdrawn," directs that the bond for payment of the tax shall be conditioned; for its payment before "removal" from the distillery warehouse. The statute thus itself construes the word "removal" tomeall "withdrawaL": ;A withdrawal cannot be the work of chance or accident.' It must be the act of an intelligent agent. lam, then, of the opinion that the tax on the spirits; for payment of which the- bODQ. in suit was given, was not due when tlie suit was instituted; ,Let an order be drawn in accordanoe with this opinion, and fol-' lowing ,the entry made at the trial, .
COTTRELL t1. TENNEY
et ale
(Circuit Court, N.,D. IUinO'is. January 4; 1899.) 1. spil;I;lCY wx;e*the ·. au\! in caused judgment' I/.otes'to be,jI1Q.de wlthout conillderation, and had Judgments entered thereon; thil.'t subsequently "executions were issued thereon, and levied on the prop,erty,:aneJassets of, said corporation, Blld that afterwards said defendants to court that su,c.h judgments were a Jegal and binding "obligation Qn ',said comilaf1:yand procured an order of aaid court for the sale of all the assets of sauicorpor;J.tlOD, and that the proceeds pf such sale be 'applied ,to said ..judgments';" in consequence whereof the plaIntiff's stock was rendered valuelesS. Held, that as these allegations showed that the sale was not made under the executions in the ordinary course of enforcing judgments, but :was, ,I;n virtue of sllc,me ancillary: prOClledingl!l, the decla.ratioJ;l was Insufficient in not' settit),g out enougb thereof to show whether such pl;'Oceedings were of a nature to bind the stockholders.' ' , , S. J:,.IIIlITATIOl'l; 011' AOTIONS-I'X<1ilADINGc-ANTIOIPA'!'ING DEPENBB.'
, , An in.a .that defer:'dants concealed the cause , o,f aOtlontr,oDi plmntlff, notst,atmg tbe 'taotsconstitutmg such concealment, is not the .case out oftl:/.ellperation of the statute of limitations, and tenders the 'declaration demurrable, eveJ:l though it was not necessary fllr plaintiff to attempt to avoid the effect of the statute. ' "
!
At Law. , Action by Calvert 'P. Cottrell against Daniel K. Tenney and others for. 'conspiracy to wrecK the John B. Jeffrey Printing Company, wheteof cQmplainant wass stockholder. Heard on demurrer to , am£inded compl8lint. SU'stained. lh088C'11p.k Wean, for plnihtitf. Tenney,; 6/hurch &; Cojfetm. for D. K. Tenny. ,Barnum. &;, 'Barnum; lor J efIreyPrilltingCo.'