Knox v. Devens

If I thought any thing, which I should decide in this case, Would shake in any, the most remote degree, the decision in U. S. v. Lyman [Case No. 15,647], I should exceedingly regret it, for to that decision, after much consideration, my mind deliberately adheres. But it appears to me, that the present ease stands upon wholly independent principles. In the case of U. S. v. Lyman, Mr. Lyman was both owner and consignee at the time when the goods were imported. After the entry of the ship at the custom-house he sold the teas in question, and the purchaser, after the sale, gave a bond at the custom-house for the duties. No question arose there, whether the United States had a remedy against the owner of the goods for the duties, where they had been originally consigned to a third person, who had regularly entered them as consignee, and given a bond for the duties. Upon that question,' as at present advised, I should have arrived at a very different conclusion from that, which governed ¿the court in the former case. The revenue collection act of 1790, c. .128, § 36 [1 Story’s Laws, 606; 1 Stat. 655, c. 22], provides, that the entry of foreign goods, imported into the United States, shall be made at the custom-house by the owner or owners, consignee or consignees, or, in their absence or sickness, by their known agent or factor; and it prescribes an oath to be taken on that occasion. Before any permit to land the same goods can be obtained, the duties must be paid, or secured to be paid, by the importer, (whether he be owner or consignee,) in the manner prescribed by the 62d section of the same act. If the act had stopped here, there would not seem much room to-doubt its real object and purport. Importations might be made by persons resident in the state or district on their own account. They might, on the other hand, be made by such persons, not on their own account, but for the use and benefit of third persons. In each case, the party making the *807importation, whether on Ins own account, or for others, may properly and technically be deemed the importer. It could not have escaped the notice of congress, that the course of trade was to import largely on consignment, sometimes for the use and benefit of a foreign merchant, and sometimes for the use and benefit of a distant domestic merchant. In either case it would be highly inconvenient to require, that the real owners should give bonds for the duties, or that the usual terms of credit in other cases should be withdrawn from them. When, therefore, the act required, that the consignee should enter the goods, and should give bonds for the payment of duties in the same manner as the owner; when, in the same sentence, uno flatu, it treats the consignee as having the same rights and the same responsibility as the owner; when it farther deems the importer the real and original debtor for the duties due on importation; the natural inference is, that, for the purposes of the act, the consignee is deemed the owner, and that he and he alone is the original debtor for the duties.2 But the act does not leave this to mere inference from general principles of interpretation. It expressly declares, in the close of the 62d section, in order to prevent frauds arising from collusive transfers, “that all goods, &e. imported into the United States, shall, for the purposes of this act, be deemed and held to be the property of the persons to whom the said goods, &e. may be consigned, any sale, transfer, or assignment, prior to the entry and payment, or securing the payment of the duties on the said goods. &e. and the payment of all bonds then due and unsatisfied by the said consignee, to the contrary notwithstanding.” So that in respect to the United States and the payment of duties, the consignee is treated as the real owner. How, then, can it be said, that if the consignee, after giving bond with sureties for the duties, should fail, so that the bond should remain unsatisfied, the United States might still elect to proceed against the real owner for the payment of duties, when the act has declared, that the consignee shall be deemed the owner for the purposes of the act? That would be to hold him owner and not owner in the same breath. It appears to me, that when a person is a bona fide consignee, the liability to pay duties attaches to him as importer, and to him only; and that, with reference both to the language and the policy of the act, it matters not, who may be the parties having any ulterior beneficiary interest in the goods. The law looks to the fact of consignment, and recognises the party, who appears as consignee on the manifest and bill of lading and invoice, (which are to govern the entry,) as the substantial owner. It does not choose to trust to the uncertain results of other evidence to establish the true ownership; but it adopts a convenient and easy rule, by which to guide public officers promptly in their duty, as well as parties in their responsibility. Why else is there such solicitude manifested throughout the act upon the subject of consignments? The master is required in his manifest to state the name of the consignee. The original bill of lading and invoice are to be produced and sworn to upon the entry; and the fact is to be stated upon oath, whether the goods are on account of the party or on consignment. But in cases of consignment the name of the actual owner of the goods is not required to be disclosed. If, on the other hand, the entry is by a mere agent or factor, the name of the party, for whom he acts, whether he be owner or consignee, is required to be disclosed.3 I cannot therefore admit, that, in the case of a genuine bona fide consignment, the owner of the goods, (not being the consignee,) whether he be a foreigner or a domiciled citizen, would, upon the failure of the consignee to pay the bond given for duties, be responsible to the United States therefor. What would be the case, where the consignment was fraudulent, and intended as a cheat upon the United States, it is not necessary to decide. That might perhaps justify the application of other principles.

The argument, then, so far as it is bottomed upon the ground, that the defendant would have been liable to the United States for the duties, if they had remained unpaid, cannot be supported. I agree, that the importer is liable for the duties to the United States; but I cannot agree, that the Messrs. Lewis were not, in the sense of the act of congress, importers, and personally and exclusively liable as consignees for the duties. But if it were otherwise, it would by no means follow, that because the defendant might be personally liable for the duties to the United States, therefore the plaintiff, having paid them, is entitled to recover the amount from the defendant. To justify such a conclusion there must be some privity established between the parties. If the plaintiff had paid the duties, or had become surety on the custom-house bond, at the request of the defendant that might have raised an implied obligation on his part to indemnify the plaintiff. But the facts of the present case raise no such presumption. The goods were consigned to the Messrs. Lewis; and were entered by them, as consignees, at the custom-house, in the maimer authorized and prescribed by law. One of the firm gave his bond for the duties, and the plaintiff became surety on that bond, at the request of the principal in th’e bond, without any notice to, or any request of the defendant. The plaintiff then became surety, not for the defendant, but for the principal in the bond. When *808it tras paid it was money paid for the proper debt of the same party. It was in no just sense money paid for the defendant, because he was not a debtor upon the bond, to which the obligation of suretyship attached. He might be beneficially interested in the payment; but that is not sufficient to create a legal obligation to pay it. It makes no difference, that the goods were shipped on account and risk of the defendant, and so appeared upon the bill of lading ánd invoice produced at the custom-house. That did not, as between the parties to the custom-house bond, make the bond less the proper debt of the consignee. The consignee was still by law required to give the bond, and contract a personal obligation to pay the duties; and the surety was his security for the payment of the same. There was no privity between him and the defendant in respect to that obligation. It is common learning, that, if A owe a debt to B, C cannot, by paying it without A’s request or co-operation, create an obligation on the part of A to repay it to him. And if C becomes surety for D, for the proper debt of A, C cannot, by the mere discharge of the debt, entitle himself to recover over against A. The reason, in both cases, is the same. There is no privity between the parties. Neither of these eases is so strong, in point of law, for the defendant, as the present case; for here, the consignees were primarily bound, as consignees, to give the bond, and pay the duties, as a personal debt, to the government, whoever might be ultimately interested to them.

This is the view of the case, which I should be disposed to take upon principle. But there are authorities directly in point. In Tom v. Goodrich, 2 Johns. 213, the goods were imported by a co-partnership at New York; one of the partners gave bonds at the customhouse, with the plaintiff as his surety; the surety paid the bonds, and now brought his suit to recover the amount against the surviving partners. Some objections arose from the form of the declaration. But the court decided against the recovery, mainly upon the ground, that the debt, for which the plaintiff became surety, was the debt of the partner only, who gave the bond, and that a promise to indemnify, and to refund upon payment of the money, ought to be implied only against the partner giving the bond. Mr. Justice Tompkins there said, (and in that opinion my Brother Thompson' concurred,) that the law does not imply a promise by all persons, who may be benefited in consequence of payment by a surety, but only by the person, whose debt is thereby discharged. Mr. Chief Justice Kent added, that it would be refining upon the doctrine of implied assumpsits, and going beyond every case, to consider the surety in a bond, as having by that act a remedy at law against other persons, for whom the principal in the bond may have acted as trustee. That case was stronger than the present; for there the co-partnership were said to be the importers, though it does not appear, from the facts of. the case, who were the consignees. I do not meddle with another proposition, stated in that case, that the receiving of the bond of one partner, for a debt of the firm, extinguished the debt of the United States against all the others. Upon that I beg to reserve any opinion until it arises directly in judgment. 4 But I entirely concur in the general doctrine above stated. And it was confirmed by the court in the most ample manner in the case subsequent of Sluby v. Champlin, 4 Johns. 461. There, the supercargo had given bonds at the custom-house, (being, I presume, consignee,) and the surety paid the money; and it was held, that his remedy was against the supercargo only, and not against the owner of the cargo.

There is another ingredient in this case, which would be decisive against the plaintiff; though I am disposed rather to settle the case upon the general principle already stated. It is this, that the Messrs. Lewis originally guarantied the debt, if the rum was sold (as it in fact was) upon credit. This they did before giving bonds at the custom-house. They accordingly, in their account current, treated the duties as a personal debt of their own, and charged the amount against the defendant, as a part payment of the net proceeds of the rum. At all events, they had a lien upon the goods and their proceeds for the amount; and having guarantied the payment, as between them and the defendant, the case is to be considered in the same way, as if they had, actually received the proceeds before their failure. Under such circumstances, it is clear, that, if the Messrs. Lewis had actually paid the bonds, they could not recover the amount from the defendant. If so, what ground is there to suggest, that the surety stands upon a better right as against the defendant? If the Messrs. Lewis, as between themselves and the defendant, made the duties their own debt, so as to be entitled to no recourse over against him, how can a surety upon their bond for that debt say, that it is still a subsisting debt in his favour? If extinguished between the consignees and the defendant, how can it be revived as to the surety'? If the defendant had paid the amount to the consignees before the bond became due, where would there be any equity or law to support the claim of the surety? But I wish to have it considered, that I put the decision upon the general principle, independent of the special circumstance of the guarantee. Upon the whole, my opinion is, that the defendant is, upon the facts, entitled to judgment in his favour.