The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1888-04-10
SUSTAINED.
Justice Dole Renders an Impor-
tant Decision
I'm the Case of the Collector General
Against MaefarIane and Luce,
AssumpsIt-The Defendants
Demurrers Allowed.

| Customs, vs.. w. 5. Luce.
| Ruling on defendants demurrer.
The following grounds of demurrer are
| offered by defendants counsel:
l. The statute peremptorily requires
that ''there shall always be annexed tc
the petition liberal copy of the voucher
upon which it is predicated.
2. The form of the action should be
debt instead of assumpsit.
g. The declaration fails to show any
right of action in the Collector General
of Customs.
f. The only fact alleged is that ode
PENDANT withdrew and received from the
Custom House in said Honolulu, with
out the payment OF duty thereon, the
several amounts OF liquor mentioned
and referred to in said bill of particulars,
which said liquor had before its said
withdrawal anu receipt by said defend
ant, ben imported and introduced into
this Kingdom from abroad" and the
other averments are not traversab.e,
being merely conclusions of law sought
to be based, as all matters of law must
rest on such facts as are pleaded.
5. There is no averment negativing
the exceptions in the statute which pro-
vides that no import duties shall be
levied upon goods imported for naval
stores, for foreign diplomatic represent
atives, for the King and Queen, or for
the use of the Government.
In regard to the first ground of de-
orders referred to in the bill of particu-
lars should have been made part of the
complaint, the case of Shawmut VS..
Stevens, 9 Allen, 332, is authority that
such an objection may properly be
raised by demurrer. / think that the
defendant is entitled to have the orders
in question annexed to the petition,
under the provisions of sections 100
and HOP of the Civil Code Such orders
appear to be the written evidence or
vouchers upon which the action is predi
Gated. The bill of particulars attached
to the petition is not bill of particulars
in any exact sense; and furnishes little
detailed information to the defendant.
The plaintiff has expressed his will
ingness to furnish copies of the orders
in question, which if done within a
reasonable time would probably satisfy
the defendant on this point if this were
the only ground of demurrer.
The objection that the form of action
should be debt instead of assumpsit l
will consider in connection with the
fourth ground of demurrer, that the facts
alleged do not justify the inference
drawn from them by the declaration. If
it had been alleged that the defendant,
being the owner or consignee or the
agent of the owner or con-
signee of the liquors in question, had
them without securing or
paying the duties payable on them, in
that case l think it is clear that debt
would be the proper form of the action.
United States VS.. Lyman, l Mason,
i81.) But the declaration in this case |
sets forth no statutory obligation on the |
part of the defendant to pay the duties
n question; and the inference OF law |
get forth by the declaration that "said |
several sums of money should have been
paid or secured by said defendant to the
Collector General of Customs," etc,
Ices not follow from the allegations of
act, for it is nowhere averred that de-
endant was the owner or consignee or
authorized agent of the owner or con-
ignee of the liquors in question, whereas
ection 500 of the Civil Code provides
hat:
''No person shall enter any goods and
ecure the duties of them as principal
n the bond, unless he is the owner or
onsi Tnee at the time the vessel enters
ort, or unless he is the authorized
gent of such owner or consignee"
Therefore, as the defendant does not
ppear to have any statutory relations
18th the Government in connection
18th these goods as an owner or con-
gnee, do not see how the Govern
lent has an action of debt against him,
nd for the same reasons l do not see
ow the Government could bring an
elton to collect the said duties from this
efendant except by indebitatus as
lmpsit or by an action of tort, and l
N doubtful if the law would imply a
,ntract under the circumstances.
But the complaint is demurred to on
lie ground that the facts alleged do not
lpport the plaintiffs claim The facts
e that the defendant withdrew liquor
ON the Custom House, which had
zen imported from abroad, presumably
7 other parties. 1t is not stated that
2 was the owner or consignee. The
,claration proceeds to claim that ''by
W there was collectahle and payable .
III due from said dofon.ln,t nc d,,t.- | q