United States Fidelity & Guaranty Co. of Baltimore, Md., v. U.S., 1308.

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
PartiesUNITED STATES FIDELITY & GUARANTY CO. OF BALTIMORE, MD., v. UNITED STATES et al.
Docket Number1308.
Decision Date28 November 1914

220 F. 592

UNITED STATES FIDELITY & GUARANTY CO. OF BALTIMORE, MD.,
v.

UNITED STATES et al.

No. 1308.

United States Court of Appeals, Fourth Circuit.

November 28, 1914


Edward R. Baird, Jr., of Norfolk, Va. (Baird, Swink & Moreland, of Norfolk, Va., on the brief), for plaintiff in error.

Hiram M. Smith, Asst. U.S. Atty., of Richmond, Va. (Richard H. Mann, U.S. Atty., of Petersburg, Va., on the brief).

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

PRITCHARD, Circuit Judge.

This is an action instituted in the United States District Court for the Eastern District of Virginia, at Norfolk, in February, 1914, against Columbus F. Cheshire and the United States Fidelity & Guaranty Company, upon a warehousing bond in the penalty of $5,000, in which the former is principal and the latter is surety. The plaintiff in error will be referred to as defendant, and the defendant in error as plaintiff; such being the relative positions the parties occupied in the court below.

This case was heard upon a stipulation as to the facts. The court instructed the jury to return a verdict in favor of the government for $3,221.79, with interest from the 30th day of May, 1913, at the rate of 6 per cent. per annum until paid; said amount being the full claim [220 F. 593] of the government as presented in such action. Judgment was accordingly entered by the court upon this verdict.

The circumstances are as follows:

Columbus F. Cheshire was a distiller, owning distillery warehouse No. 3, near Portsmouth, Va. The warehousing bond given by him, upon which this suit was brought, was conditioned.

'To pay the full amount of tax, at the rate imposed by an act of Congress of August 28, 1894, on all spirits so deposited in said distillery warehouse before removal therefrom and within eight years from the date of entry of such spirits for deposit in said warehouse.'

Because of alleged offenses against the government, proceedings were begun by it, before the institution of this suit, against Cheshire, in which was obtained a judgment forfeiting to the government the distillery, the land whereon it was located, and 64 barrels of spirits, upon which taxes amounting to $3,221.79 were then unpaid. The agreed statement of facts contains the following:

'Fourth On May 30, 1913, subsequent to the seizure and forfeiture of the distillery in these proceedings described, and while said distillery and whisky was in the possession of the United States government, to be sold by the marshal under the order of this court in said libel proceedings, the whisky in the warehouse was stolen therefrom before said sale, and has never been recovered or sold.'

Upon the trial the court refused certain instructions asked for by the defendant, and at the request of the government charged the jury as follows:

'The jury are charged that the United States tax on spirits distilled attaches to the same as soon as it comes into existence, and continues as a first lien thereon until the tax is paid or the whisky is sold by the United States; and defendants are not relieved from the payment of the tax thereon because the same was stolen before the sale thereof, while in the possession of the government,
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4 practice notes
  • United States v. One Ford Coupe Automobile, No. 115
    • United States
    • United States Supreme Court
    • November 22, 1926
    ...the tax attaches to distilled spirits 'as soon as it is in existance as such' (United States Fidelity & Guaranty Co. v. United States, 220 F. 592, 136 C. C. A. 50), and upon its production the tax becomes a first lien thereon (United States v. Ulrici, 111 U. S. 38, 42, 4 S. Ct. 288, 28 L. E......
  • Dickert v. Hickey
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 9, 1940
    ...tax attaches to distilled spirits `as soon as it is in existence as such,' (United States Fidelity & Guaranty Co. v. United States 4 Cir., 220 F. 592), and upon its production the tax becomes a first lien thereon (United States v. Ulrici, 111 U.S. 38, 42, 4 S.Ct. 288, 28 L.Ed. 344). The Rev......
  • United States v. U.S. Fidelity & Guaranty Co. of Baltimore, Md., 1299.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • February 2, 1915
    ...States v. Sisk, 176 F. 885, 100 C.C.A. 355, and the recent case in this court, United States Fidelity & Guaranty Co. v. United States, 220 F. 592, 136 C.C.A. 50, decided November 28, 1914. An earnest argument is made that under the facts and circumstances here disclosed it is unconscionable......
  • United States v. Hickox, No. 22317.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 25, 1966
    ...§§ 5001 and 5005 of the Internal Revenue Code of 1954,2 26 U.S.C. §§ 5001 and 5005. United States Fidelity & Guaranty Co. v. United States, 220 F. 592, 594, CA 4, Besides becoming a creditor on or before November 28, 1956, the Government became a lien creditor on November 6, 1959, and on Fe......
4 cases
  • United States v. One Ford Coupe Automobile, No. 115
    • United States
    • United States Supreme Court
    • November 22, 1926
    ...the tax attaches to distilled spirits 'as soon as it is in existance as such' (United States Fidelity & Guaranty Co. v. United States, 220 F. 592, 136 C. C. A. 50), and upon its production the tax becomes a first lien thereon (United States v. Ulrici, 111 U. S. 38, 42, 4 S. Ct. 288, 28 L. E......
  • Dickert v. Hickey
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 9, 1940
    ...tax attaches to distilled spirits `as soon as it is in existence as such,' (United States Fidelity & Guaranty Co. v. United States 4 Cir., 220 F. 592), and upon its production the tax becomes a first lien thereon (United States v. Ulrici, 111 U.S. 38, 42, 4 S.Ct. 288, 28 L.Ed. 344). The Rev......
  • United States v. U.S. Fidelity & Guaranty Co. of Baltimore, Md., 1299.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • February 2, 1915
    ...States v. Sisk, 176 F. 885, 100 C.C.A. 355, and the recent case in this court, United States Fidelity & Guaranty Co. v. United States, 220 F. 592, 136 C.C.A. 50, decided November 28, 1914. An earnest argument is made that under the facts and circumstances here disclosed it is unconscionable......
  • United States v. Hickox, No. 22317.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 25, 1966
    ...§§ 5001 and 5005 of the Internal Revenue Code of 1954,2 26 U.S.C. §§ 5001 and 5005. United States Fidelity & Guaranty Co. v. United States, 220 F. 592, 594, CA 4, Besides becoming a creditor on or before November 28, 1956, the Government became a lien creditor on November 6, 1959, and on Fe......

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