Flagler v. Kidd

• Decision Date: 13 January 1897
• Parties: FLAGLER v. KIDD et al.
• Court: U.S. Court of Appeals — Second Circuit

78 F. 341

FLAGLER v. KIDD et al.

United States Court of Appeals, Second Circuit.

January 13, 1897

W. A Poucher, U.S. Atty., for plaintiff in error.

Hale Bulkeley & Tennant, for defendants in error.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

WALLACE Circuit Judge.

This is a writ of error to the circuit court for the Northern district of New York by the defendant in that court to review a judgment for the plaintiffs. The action was brought against the defendant, as collector of customs of the port of Suspension Bridge, to recover damages for the seizure and detention by him of 65 puncheons of spirits, the property of the plaintiffs. The action was tried before the court without a jury, a trial by jury having been waived by the written stipulation of the parties; and in ordering a judgment for the plaintiffs the judge made and filed special findings of fact. There is no bill of exceptions, consequently the review can only extend to the consideration of the sufficiency of the findings of fact to support the judgment. Insurance Co. v. Boon, 95 U.S. 117. The assignments of error are defective, because they merely state that the judgment should have been for the defendant instead of the plaintiffs, and that neither the complaint nor the findings state any good cause of action. They fail to point out any 'particular error asserted and intended to be urged,' as is required by the rule. As was said by the court of appeals for the Seventh circuit (Grape Creek Coal C. v. Farmers' Loan & Trust Co., 12 C.C.A. 350, 63 F. 891), 'an assignment of errors cannot be good if it is necessary to look beyond its terms to the brief for a specific statement of the question to be presented. ' See, also, Oswego Tp. v Travelers' Ins. Co., 17 C.C.A. 77, 70 F. 225; Doe v. Mining Co., 17 C.C.A. 190, 70 F. 455. We are very reluctant, in a case of respectable importance, to deny a review upon the merits of the controversy by a rigid adherence to the rule. As the merits were fully presented in the court below, and considered in its opinion (54 F. 367), and are fully discussed upon the brief of the defendant in error, and as the enforcement of the rule is discretionary with the court, and in case of plain error will be relaxed, we have concluded to disregard the objection.

It appears by the findings of fact that in July, 1884, the plaintiffs withdrew the spirits from a bonded warehouse at Des Moines, Iowa, for export to Canada, without paying the internal revenue tax thereon, and complied with all the requirements prescribed by the statutes and regulations in that behalf, intending to send them to New York City via Windsor, Canada, and pay the tax at New York City. When the spirits arrived at Windsor, they were taken out of the cars in which they had been shipped, and placed in a warehouse under the charge of Canadian customs officers. They remained there from July 12 to August 16, 1884, and were then shipped by the plaintiffs, in cars under the seal of the consul of the United States at Windsor, invoiced to the collector of the port of New York. When they arrived at Suspension Bridge, which was August 18, 1884, they were seized and detained by the defendant, acting under instructions from the secretary of the treasury, upon the ground that they had been improperly withdrawn from the warehouse at Des Moines, and there had been no exportation of them. On October 28th they were released by the defendant, upon the giving of a bond by the plaintiffs for exportation, and payment of certain charges for storage, etc. The court found that the plaintiffs were at all times ready and willing to pay the internal revenue tax upon the spirits, and that in consequence of the seizure and detention they sustained damages in the sum of $2,526.97. Upon these facts the court decided as matters of law that the seizure and detention of the spirits were wrongful and unlawful, and that the plaintiffs were entitled to recover their damages.

It appears by the opinion of the judge of the circuit court that judgment was awarded to the plaintiffs upon the legal theory that the spirits had been withdrawn from the warehouse for exportation and the plaintiffs were entitled to reimport them upon paying a duty equal to the original revenue tax under the provision of the act of congress of July 28, 1866, entitled 'An act to protect the revenue and for other purposes,' and reproduced in the Revised Statutes as section 2500, and which reads as follows:

'Upon the reimportation of articles once exported of the growth, product or manufacture of the United States, upon which no internal revenue tax has been assessed or paid, or upon which such tax has been paid and refunded by allowance or drawback, there shall be levied, collected and paid a duty equal to the tax imposed by the internal revenue laws upon such articles.'

The provision for withdrawing distilled spirits from warehouse is section 3330 of the Revised Statutes, and reads as follows:

'Distilled spirits may be withdrawn from distillery bonded warehouses, at the instance of the owner of the spirits, for exportation in the original casks, in quantities of not less than one thousand gallons, without the

...