The Portland daily press., 1870-07-08
Cirruit Court.

was argued by j. S. Rowe for Plaintiff and
Geo. f. Talbot, for Defendant. AS the case
excited considerable interest in the eastern
part of the State, and involves an important
principle, we lay before our readers the opin-
ion of the Court as drawn by Judge Shep]ey
Jonathan r. Treat as. Miles S. Staples.
This is an action of replevin for tho brigan-
tine IN. A. Herrera" her boats attached and
apparel.
The general issue was pleaded and joined
and the defendant also denied that property
was in the plaintiff, and set up properly and
right of possession in himself as q deputy col
lector of the Internal Revenue of the United
States.
On the twenty eighth day Of July A. d.
1868, the briganline being then the property Of
Annie M. Ridley, and registered as a British
vessel at st. Andrews, in the Province of New
brunswick, was by her conveyed by mortgage
duly executed and recorded to James Treat, OF
Frankfort, Maine, to secure the payment of a
note for twenty Thousand dollars, payable in
one year from that date
James Treat being indebted to the plaintiff,
Jonathan +. Treat on the thirty-first day OF
March, A. A. 1864, assigned the mortgage to
the plaintiff then and now resident in Califor-
MIA, and delivered the appointment and the
plaintiffs agent at Frankfort, Maine. TIE
mortgage debt was not paid, and the plaintiff
had the right to immediate and exclusive pos
In the mortgage Annie NJ. Ridley is de-
scribed as of Bristol, England, then residing
at st. Andrews in the Province of New Bruins
wick.
Her parents were British subjects residing
at the time of her birth and ever since at Cliff
ton, near Bristol, England.
In 1853, being then 10 her twelfth year, she
came from Clifton to Frankfort, Maine. There
she remained in the family of George Treat, a
brother of the plaintiffs, until the spring of
i, tI,a finy,n If
TO sea as q companion of the wife of George
Treat, who is a master mariner.
In July, 1863 she went to ST. Andrews in
the Provinces of New Brunswick, where she
had friends and resided in the family of j. H.
Whitlock collector of that port, and attended
school. In March or April, 1864, she made a
short visit in Massachusetts. In June, 1865,
she made a visit of thaee weeks duration in
Frankfort, then returned TO st. Andrews and
in the fall of that year returned to her home in
England, where she has since resided.
In June, 1865, the Assistant Assessor of In
ternal Revenue for collection of District num-
Der five, in the State of Maine, which embrac-
ed the town of FRANKFORT, returned to John
West, collector of Internal Revenue for that
District, list of p rsons in FRANKFORT and
SearspOrt subject to Internal Revenue tax. In
this list Annie nj. Ridley is assessed on income
$l53779, and penalty, $3.50 AZ, and at the foot
of the list the Assessor certifies that miss
Annie Nj. Ridley, of Frankfort, abOve-Damed
upon being duly notified and required to re-
turn me, Charles HI. Pierce, assistant assessor
of the tenth division of the fifth collection dis.
trict of the State of Mane the amount of her
income gains and profits during the year 1864
and after reasonable time allowed her therefor,
she having neglected to render me the return
of said income gains and profits for the said
year, 1884, from the best information L can Oh
tain, / have valued the said income gains and
profits for said year at eighteen thousand three
hundred and seventy-seven dollars; and upon
the valuation have assessed upon her a tax or
duty of one thousand five hundred and fifty-
eight dollars and seventy cents; and have also
assessed upon her a tax or duty of three hun
dred and eighty-nine dollars and sixty seven
cents, it being twenty-five per cent. added
thereto as penalty for willfully neglecting to
return and render in to me the income gains
and profits accruing to her as aforesaid, in the
year 1864, the whole duty or tax being one
thousand nine hundred and forty eight dollars
and thirty-seven cents.
July %, 1865, John West, the Collector,
committed 20 the defendant, his deputy col
lector, duly appointed, a list of unpain taxes
for collection in which list is included an in
come tax against Annie M. Ridley of 81 557 "
and penalty of $3.50 AZ.
At time between the first and seventh
OF August, DEPENDENT called at Jonathan
Treats, where he understood Miss Kelley had
previously lived, and left there a notice for her
to pay her tax. August 9th and August 21st,
defendant also deposited in the post-office, ad-
dressed to Annie NJ Ridley, Frankfort, Me-,
notices to pay the tax in the usual form. These
notices were not taken from the Office, and
were by the postmaster returned to Defendant
in April, 1866.
SSeptember %, 1866, West called upon
James Treat and told him his business was to
collect Annie M. Kidley's tax or distrain her
property, and asked said Treat if be was her
agent, or if she had an agent in this country.
James Treat replied that Miss Kelley lived in
New Brunswick, and had no agent in this
country.
Sept. 49, 1865, defendant received from Jonn
West, the collector, warrant of distraint dat
ed September q, 1865, and on the same day
seized and distrained upon the Brigantine M.
A. Herrera, and was proceeding to comply
with the provisions of law in relation to dis
traint and sale, when on the 26th day of Sep
TENDER the Brigantine was taken from his Gus
tody by the writ of replevin in this case.
Upon this state of facts it is difficult for the
Court to arrive ut the conclusion that Annie
M, Ridley was taxable upon annual gains
profit, or income for the year eighteen hundred
and sixty four. She does not appear to be en-
the statute, as person residing in the United
States, or citizen of the United States, resid-
ing abroad'-13 Stat, at large 2S1, 49,
And even if she had been person liable to
pay duty on income and had neglected and
refused, after legal demand, to pay the same,
the amount due would have constituted lieu
in favor of the United States from the time it
was due unit paid, only upon the property
and rights of property belonging to her at that
time.
The warrant to distrain the goods of the de-
linquent, would not authorize the collector to
levy upon property mortgaged long before the
tax was assessed or due. and to which, if the
mortgage bad not acquired IAN absolute title
he had certainly the right of immediate and
exclusive possession.
If the United States had any lieu it could
only have been on such "rghts Of property" il
any, as Annie NJ. Ridley had in the Brigan-
tine when the tax was due. 1t is clear upon
the agreed statement of facts in this case that
she had at that time no such rights of prop
erty" in the vessel as would justify a seizure
of the vessel itself and sale of it either as hel
property or as property conveyed by her under
conveyance subject to q paramount lieu in
favor of the United States.
The question then arises if Annie NJ Ridley
was not liable to be assessed for duty or tax
on income; and if the property seized by the
Deputy Collector is not fairly to be considered
as liable to seizure as the property of Annie
NJ Ridley even if she were legally taxable anG
delinquent is the Plaintiff entitled to maintain
an action of replevin against the defendant &
deputy collector of the Internal Revenue O.
the United States.
The statute of the United States approved
March 2 1885, Statutes. at Large $685. pro
vides that "all property taken or detained by
any officer or other person, under authority o
any revenue law of the United States, shall b.
irreplevable, and shall be deemed to be in til,
Suseouy VI tne Id" anu supIecI ouly " Jne or
ders and DEGREES of the courts of the United
States having jurisdiction thereof"
The fftieth section of the act of June 30
1864, Statutes at Large al, extended tn
provisions of the Act of March 2, 1888, to al
cases arising under the laws for the collection
of internal duties licenses, or taxes whicl
have been or may hereafter be enacted, ''ant
all persons duly authorized to assess, receive
or collect such duties taxes under sucl
laws are hereby declared to be and to hav
been revenue officers within the true inten
and meaning of the said act and entitled to al
exemptions, immunities, benefits, rights an,
privileges therein enumerated or conferred"
The Act of July 13. 1856, IA Statutes n
Large 172, repeats the fftieth section of tn
Act of June 80, 1864, but it also provides tina
all property taken or detained by any Office
or other person under authority of any revt
nue. law of the United States shall be irrepl,
viable and shall be deemed in the custody
the law and subject only to the orders and d.
crees of the courts of the United States havin
jurisdiction thereof.
Where q statute is repealeL end one or MOI
more of its provisions is re-enaeted in the r,
pealing statute so that there is no moment
which the repeal is in force without being r,
placed by the corresponding provisions of tn
new statute, in practical operation and leg
effect this is to be considered rather as cor
tinuance aud modification of old laws than
an abrogation of the old and the re -enactmer
OF new ones.
Wright VS.. Oakley 5, Metcalf 4O6.
Steamship Company VS.. Joliffe, Wallac
458.
But it is contended that the provision of Il
Statute that property taken or detained by
officer or other person, under authority of
revenue law ct the United States, shall be
repleviable, applies only to such property az
ia authorized by his warrant To taJra and do