The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1888-04-10

from the Custom House without secur
ing or paying duty thereon, he is liable
to the Government for the duties.
1t is also commended by the defendan
that the allegations of the petition art
insufficient, because the goods referred
10 are described as ''liquors." which art
not necessarily dutiable by the statute
| think that this a defect in pleading
but as the demurrer is allowed on Other
grounds need not further consider it.
In regard to the objection that the
declaration should have averred that the
goods in question were not within the
exceptions of the statute, 1 have not
been able to satisfy myself fully. The
case of Spheres VS.. Parker, in Durn-
ford & East's Reports, al, which sup
ports the doctrine that such allegation is
essential in actions fora penalty under
an Act of Parliament. does not seem to
be closely applicable to this case.
The third ground of demurrer, that
the declaration fails to show any right
of action in the Collector General of
Customs, appears to me to be a valid
objection upon the reassuring on the
same point in the ruling on the demurrer
in the case of the Collector General VS..
| 6. w. Macfarlane & Co.
| therefore allow the demurrer on the
first, third and fourth grounds
A. S. Cleghorn, Collector General of
Customs, VS.. g. w. Macfarlane & Co.
Ruling on defendants demurrer.
The grounds of the demurrer are as
| follows:
1. The declaration shows that the
Liquors referred to were drawn from the
Custom House more than six months
before the action was begun, wherefore
the action is barred by the statute of
limitations set forth in section 681 of the
Civil Code, which is as follows: "All
suits brought against any person, vessel,
goods or other property for the violation
of any provisions of the revenue laws,
and all suits brought against any officer
OF the Customs, or other person for any
thing done in pursuance of the revenue
laws, shall be commenced within six
monts after such violation is discovered
or such thing DONE"
2. If this action is not suit for viola
ton of any provisions of the revenue
laws, the Collector General had no
authority to bring it.
In the first place, in reference to the
contention of the Attorney General, that
a more liberal standard should prevail
where the rights of the Government are
at stake than in the case of private in
dividual, it is clear to me that in any
proceeding in which the Government is
a party, unless it is allowed some privi
lege or advantage by law, it stands upon
the same footing with other litigants and
may not claim right to special accom-
mediation or exceptional leniency on the |
ground that it is the Government
If this action is a suit for the violation |
contemplated by the above quoted sec
ton, there is no doubt in my mind that
the Government would be barred by the |
statute
But this does not seem to me to be a
suit for the violation of provision of the
revenue laws as contemplated by the
statute The Collector General is author
lied by section 666 of the Penal Code to
bring such suits in his own name on be-
half of the Hawaiian Government The
title of article 26 of the Civil Code, in
which these sections are found, is, "Of
and Other Frauds Against
the Revenue Laws" and it appears to
me from careful reading of the whole
article that the violations of the provis-
ions of the revenue laws contemplated in
sections 666 and 681 are such as are
described in the Goth article, such as
the case of police officer re-
fusing to assist an officer of customs in
making a search or seizure (sec. 664) in
with the officers of customs
while making a search or seizure (sec.
565) and others of somewhat similar
character, and that the suits that the
Collector General is authorized to bring
or such violations are proceedings for
he seizure and forfeiture of goods and
or the arrest of persons and their pun
shment by fine, and in some cases
~ either fine or in. prsonment.
This is an action of assumpsit for
money which it is claimed is due the
Government from the defendants by
-irtue of an implied promise to pay it,
'ut it is not suit for violation of pro-
ision of the revenue laws; the basis of
he action is promise to pay and not
collation. of law. This conclusion is
orne out by section 522 of the Civil
ode, which provides that if bond for
he payment of duties shall not be paid
yhen due the Collector General shall
...l.-. Z.