The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1888-04-09
SUPREME COURT OF the HAWAIIAN
lSLANDS---APRlL TERM, 1888.
BEFORE DOLE, j.

A. S. Cleghorn, Collector-General
of Customs, VS.. w. S. Luce.
Ruling on defendants demurrer.
The following grounds of de-
murrer are offered by defendants
counsel:
The statute peremptorily re-
quires that "there shall always be
annexed to the petition a liberal
copy of the voucher upon which it
is predicated.
2-The form of the action should
be debt instead of assumpsit
3-The declaration fails to show
any right of action in the Collector
General of Customs.
1.-The only fact alleged is that
defendant withdrew and received
from the Custom House in said
Honolulu, without 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 with
drawal and receipt by said defen-
dant, been imported and introduced
into this kingdom from abroad !"
and the other averments are not
traversable, being merely conclu-
sions of law sought to be based, as
all matters of law must rest on such
facts as are pleaded.
5-There is no averment negativ-
ing the exceptions in the statute
which provides that no import duties
shall be levied upon goods imported
for naval stores, for foreign diplo-
matte representatives, for the King
and Queen, or for the use of the
Government.
In regard to the first ground of
demurrer, j. e., the requirement that
the orders referred to in the bill of
particulars should have been made
a part of the complaint, the case of
Shawmut Mutual Fire Insurance
Co. vs.. Stevens 0 Allen 1872, is
authority that such an objection
may properly be raised by demurrer.
| think that the defendant is entitled
to have the orders in question an
neXed to the petition under the pro-
visions of sections 100 and l102 OF
the Civil Code. Such orders appear
to be the written evidences or vouch-
ers upon which the action is predi.
Gated. The bill of particulars at
tached 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
willingness to furnish copies of the
orders in question, which if done
within Il 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 will consider in connec,
ton with the fourth ground of de
murrer, that the facts alleged, dc
not justify the inference drawn from
them by the declaration. If i
had been alleged that the defendant
being the owner or consignee or the
authorized agent of the owner or con
signee of the liquors in question, hat
withdrawn them without securing o.
paying the duties payable on them
in that case think that it is clea
that debt would be the proper form
of thea ction. Omitted States VS.. Ly
man | Mason 4S1); but the declar
alton in this case sets forth NJ
statutory obligation on the part o
the defendant to pay the duties il
question; and the inference of lay
set forth by the declaration tina
"said several sums of money SHOULD
have been paid or secured by sal
defendant to the Collector-G enera
of Customs, etc., does not folloy
from the allegations of fact, for
is nowhere averred that defendan
was the owner or consignee G
authorized agent of the owner O
consignee of the liquors in question
whereas sec. 500 of the Civil Cod
provides that:-
"No person shall enter any good
and secure the duties on them q
principal IN the bond, unless he
the owner or eonsignee at the tim
the vessel enters port, or unless h
is the authorized agent of sue
owner or consigpee."