The Daily bulletin. [volume] (Honolulu [Hawaii]) 1882-1895, 1888-04-06
SUPREME GOURT---APRlL TERM.
DOLE, j., PRESIDING.
THURSDAY, April 9TH.


Collector of Customs VS.. w. S.
Luce, assumpsit.
The Acknowledgement for plain
tiff; A. s. Hartwell, +. NJ. Hatch,
and w. A. Whiting for defendant.
Mr.. Hartwell presented the de.
PENDANTS points on demurrer as
follows:-
l. The Statute peremptorily re-
quires that "there shall always be
annexed to the petition a literal
copy of the voucher upon which it
is predicated, (if any there be)."
Sec. HOP Civil Code.
The plaintiffs bill of particulars
refers to "orders on file," as the
basis for each item therein charged.
Those orders or literal copies are
required, in order that the defend
ant may be fully apprised of the
nature of the charges, and that his
counsel may be able to advise con-
corning his rights of defence. The
failure to attach q copy of a vouch-
er as required by Statute is ground
for demurrer. Shawmut Nut. Fire
Ins. Co. VS.. Stevens, 8 Allen 1872.
2. The only fact alleged in the
declaration is, that "the said de-
PENDANT withdrew and received
from the Custom House in said
Honolulu, without the payment of
the duty thereon, the several
amounts of liquor mentioned and
referred to in said bill of particu-
lars, which said liquor had before
its said withdrawal and receipt by
said defendant been imported and
introduced into this kingdom from
abroad" The other averments are
not traversable, being merely con-
illusions of law sought to be based,
as all matter of law must rest on
such facts as are pleaded. If the
traversable facts authorize no such
conclusions of law, the declaration
is bad, and must be demurred to.
The averments that the moneys
here claimed were, "by law collect
able and payable and due from said
defendant as duty upon and in re-
spect of said several amounts OF
liquor" and that they "should have
been paid or secured by said de
PENDANT to the Collector General OF
Customs upon the respective dates
when said amounts of liquor in re-
spect of which they respectively
became due were so withdrawn and
received as aforesaid" are conclu.
sions of law which cannot rest on OF
be inferred from the fact set forth,
viz. /: The defendants withdrawing
and receiving from the Custom
House, without the payment Of
duties thereon, the said imported
liquors.
There is not even an averment
that the duties on those liquors had
not then, or have not since beer
paid either by the defendant, Of
someone else, as for instance the
importer.
There is no averment that these
liquors were SO withdrawn or re
ceived by the defendant for his owl
account, or to his own use. Such Q
declaration as this would be agains
any agent acting for another, o.
against any drayman or clerk taking
out goods from the Custom House
or against an importer who haC
given duty bond.
There is no duty on liquor whicl
is all that the declation mentions
Duties on "spirituous" or "fer
mented liquors" or brandy, gin
rum, ETC., are imposed. But thi
charge would lie against taking waite
or any other fluid liquor from tn
Custom House. To say that liquo
is dutiable does not make it so. Tn
fdctS must be averred, to which tn
law applies.
There is no ayerment negativinj
the exceptions in the Statute, whic
provides that no import duties shaI
be levied upon goods importe'
for naval stores or supplies, for for
eign diplomatic representatives, 70
the King or Queen, or for the us
of the Government. Oh. Pl. 247
Term 597.
If such trayersable and essentia
facts were ayerred, defendants coun