The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1888-07-31

FARLANE. 1HE DAME VS.. w. >. LUCE
BEFORE JUDD, C. j., M'cULIr, PRESTON, HIoK-
FIT n AND DOLE, u.
Opiuion of the Cew4 By McC ULLY, J.
In the three above cases the fol
lowing complaint is made:
The undersigned A. S. Clegho rn,
His Majesty's Collector-General of
Customs. plaintiff herein on behalf
of the Hawaiian Governemnt, COM
plains of THE defendant in a plea
of assumpsit.
For that whereas heretofore, to
wit, upon the several dates named in
the bill of particulars hereuato at
tached and made a part of this dec
laration, the said defendant with
drew and received from the Custom
House in Honolulu, without the
payment of duty thereon, the several
amounts of liquor mentioned and re-
\ ferred to in said bill of particulars;
which said liquor had before its said
withdrawal and receipt by said de
fendant, been imported and intro
duced into this Kingdom from
abroad, and that by law there was
collectable and payable and due
from the defendant, as duty upon and
IN respect of said several amounts of
LIQUOR, the several sums of money
set forth in said bill of particulars,
which said several sums of money
should have been paid or secured by
said defendant to the Collector-Gen-
eral of Customs upon the respective
dates when said amounts of liquor
in respect OF which they respectively
became due were so withdrawn and
received as aforesaid from the Gus
tom House And plaintiff AYERS that
the said defendant, in consideration
of the premises, promised to pay the
said several sums of money, together
with legal interest thereon, to the Col
lector- General of Customs whenever
the said defendant should be there
unto afterwards requested. With
averment of request and refusal, etc.
Demurrers were made, which were
on some points held good by the
learned Justice who held the April
term.
Upon the appeal to the Court in
Banco the cases were treated jointly
by the several counsel for the de-
PENDANTS, and although certain points
of demurrer were made in one of the
cases below which were not made IN
the others, it was considered on the
appeal that all the demurrers were
applicable to each case.
The first ground for demurrer as
going to the standing of the cases in
court, is to the right of action in this
plaintiff to recover unpaid duties.
The statute authority for the Col
lector-General or other Collectors of
Customs, is found in Section 666 of
the Civil Code, which authorizes
him ''to cause a suit or prosecution
to be instituted in his own name on
behalf of the Hawaiian Government,
for any violation of the provisions of
any law relating to the revenue"
The context shows what are to be
considered as violations of the reve-
nue. laws. They come nnder the cap
ton of the Article, "Of smuggling
aud other frauds against the revenue"
laws. They are punished by " for
FIXTURES, fines and penalties" of
which only half is payable to the
Treasury, the other half going to the
prosecutor, informer, etc. The suits
must be brought within six months
after the violation is discovered M.
thing done.
Action of assumpsit by the Col
lector for unpaid duties is clearly |
not within the terms of the statute |
referred to. The Attorney General
does not claim so much. He con-
tends, however, that the Collector is
not expressly inhibited by statute
from bringing such action, and that
from a necessity of remedy some
where existing to secure right, the
Collector General, who has the right
to receive all moneys paid for duties
GSection 500. Civil Code should not
be barred of his remedy to collect
unpaid duties.
But it cannot be assumed that if
the Collector General cannot bring
this suit there is no remedy. 1t is a
better inference from the express
grant of power to bring action in
certain cases, to assume that other
necessary cases are otherwise pro-
vided for The duties became debt
due the Hawaiian Government i'm
mediately upon the importation of
the goods, and the Hawaiian Govern
ment may bring its suit
But A S. Cleghorn, the Collector
General, in behalf of the Hawaiian
Government, does not make the Ha-
waiian Government the plaintiff.
This ground of demurrer is deci-
'siye, and the Court sustains the rul-
ing of the trial Justice thereon.
Another ground of demurrer was
that the action should have been
brought as debt and not assumpsit.
We have observed supra that du- (
ties upon goods imported are debt
due the Hawaiian Government. This
lies in the words of the statute,
3" there shall be levied, collected and !
mid N,,,Do,, c,oode ip,y1O,.fa5 . ata nnd