Pettigrew v. United States, 97 U.S. 385

Pettigrew v. United States.

1. An action by the United States, to recover the proceeds arising from sales of tobacco, which, found in the hands of the defendant, a bailee, was seized as forfeited for the non-payment of the tax due thereon, and then left with him, under an agreement with the collector of internal revenue that he, the bailee, should sell it and hold the proceeds, subject to the decision of the proper court, is, within the meaning of sect. 699 of the Revised Statutes, an action to enforce a revenue law, and this court has jurisdiction to re-examine the judgment, without regard to the amount involved.

2. The defendant having set up in his plea that, while he held such proceeds, pursuant to the agreement, a suit to recover them, defended by A., the owner of the tobacco, was dismissed by the United States after plea filed, and that the defendant, after retaining them for nearly four years, and no other suit having been brought, paid them to A., the court, although testimony was offered sustaining his plea, instructed thejury that he was liable. Reid, that the instruction was erroneous.

Error to the Circuit Court of the United States for the Western District of Tennessee.

The facts are stated in the opinion of the court.

Mr. W. Y. C. Humes for the plaintiff in error.

Mr. Justice Miller delivered the opinion of the court. The judgment in this case is for $1,354.35, and a question is

If it is an action to enforce a revenue law of the United States, we have jurisdiction without regard to amount. Rev. Stat., sect. 699. If it is not such an action, we have not.

The counts in the original complaint are very clearly counts on a contract of bailment and for money had and received. But a demurrer to the declaration was sustained, and the case was tried on an amended declaration.

The amended declaration sets forth the seizure, while in possession of the defendants, of ninety caddies of tobacco as forfeited to the United States, on account of false and fraudulent stamps and inspection marks found there by Rolf S. Sanders, a collector of internal revenue; that said Sanders and defendants having entered into an unlawful and unauthorized agreement that defendants should sell the tobacco and hold the proceeds of the sale subject to the decision of the proper court, in proceedings to be instituted therein for the condemnation of the tobacco, said agreement was void; by reason whereof the defendants became liable to the United States for the value of the tobacco, which they have refused to pay. This is repeated in the second count, and the third is for money had and received. The substance of this is, that the tobacco being forfeited for a violation of the revenue law, and a seizure made, and the goods left with the defendants, the contemporaneous agreement is void, and the defendants are proceeded against in personam for the value of the goods so left with them, which cannot now be found. It would be a very narrow and technical definition of the phrase “enforcement of any revenue law ” which did not recognize this action as one brought for that purpose. If there had been no revenue law which made this tobacco liable to seizure, the complaint would be bad on demurrer. The foundation of the action is the right which the revenue law vests in the United States to this property, and it is the enforcement of this right that is sought in this action. This was clearly the view which the court took of the matter, and in that view of it instructed the jury as follows: —

“ And if the proper officer seized it as forfeited, and the defendants sold the same by direction of the officer seizing it, and received the money, and had not paid it, or any part thereof, to the government, they remained liable for the amount so received by them, and they should find a verdict for the plaintiffs.”

The judge evidently understood that he was enforcing the revenue law against a person unlawfully dealing with property which had been found in his possession forfeited to the government by reason of a violation of that law. We think this court has jurisdiction, under the section of the Revised Statutes cited.

The third plea of the defendants sets -out the facts that, up to the time the goods were seized, they held them on sale for commission for Glazier, Luko, & Co., of St. Louis, and knew nothing of the causes of the alleged seizure; that at the request of Sanders, the officer who made the seizure, they consented to sell the goods, and hold the proceeds subject to proceedings in court to condemn them; that defendants were directed by Sanders to sell the tobacco, because it would become worthless if detained until the end of the suit; that they did sell the tobacco, and while the proceeds were in their hands a suit was commenced against them for the money, which was defended by Glazier, Luko, & Co., and dismissed by the district attorney after plea filed; that after retaining the money for nearly four years, and no other suit being brought for the money, or other proceedings against the tobacco, or any demand of them, they paid over the money to the parties from whom they had received the tobacco. To this plea a demurrer was filed and overruled, and issue was taken on it. The bill of exceptions shows that testimony was offered tending to sustain every allegation of the plea; but by giving the instruction copied above, the court, in effect, held that, if the jury believed the plea to be sustained by the evidence, it was no defence.

In this we think the court erred.

Undoubtedly, the officer could have required them, as a condition of leaving the property where he found it, to pay the money it sold for to him, or into the treasury, or into the registry of the court. But he did not. And we see no reason to hold that it was not competent for the defendants to retain the property on the terms which he proposed. If he had required them to sell it as property of the United States, and pay them the proceeds, they might have relieved themselves of all trouble by refusing. The officer may not have performed his duty. It was probably his duty when he made seizure of the property to deliver it to some other officer of the government, and have it libelled at once, and a warrant of seizure issued. But this neglect of his duty did not make void the promise of the defendants to take suitable care of the property, and hold it ready for such order as the court which might take jurisdiction of the proceeding should make.

This is the honest and fair view of the subject, and we think it conflicts with no rule of law.

The instructions of the judge were in conflict with this view, and the judgment must, therefore, be reversed, and a new trial granted; and it is

'Na .woq v. Ritter.

1. In Illinois, a copy of the written instrument on which the action is founded must be filed with the declaration, and it constitutes part of the pleadings in the case.

2. Where bonds issued by a municipal corporation, having lawful authority to issue them upon the performance of certain conditions precedent, refer upon their face to such authority, and there is printed on their back a copy of an ordinance declaring such performance, it is not error, in an action against the corporation by an innocent holder of them, to sustain a demurrer to a special plea tendering an issue as to the authority of the corporation to issue them, or as to matters of fact contained in the recital of such ordinance.

3- The court reaffirms the ruling in Laber v. Cooper (7 Wall. 565), that, where a case has been tried and a verdict rendered as if the pleadings had been perfect, the failure to demur or to reply to a special plea setting up a matter of defence furnishes no ground for reversing the judgment.

Error to the Circuit Court of the United States for the Southern District of Illinois.

“ And whereas, by virtue of the powers granted to counties and cities by the above-recited provisions of said supplemental act, the common council of the city of Nauvoo did, on the 4th of June, a .d. 1853, make an order submitting it to the legal voters of said city, at an election to be held at the usual place of holding elections in said city, on the thirtieth day of July, a .d. 1853, to ascertain the wishes of the people of said city in reference to the subscription by the common council of said city to the capital stock of the Warsaw and Rockford Railroad Company to the amount of $25,000, to be paid in bonds of said city, having twenty years to run, and bearing an annual interest of eight per cent, payable semi-annually.

“ And whereas said election was held agreeably to said order, thirty days’ previous notice having been given, as required by said act aforesaid, and the returns of said elections in due form made to the city council, who canvassed at the regular meeting held on the first day of August, a .d. 1853, when it appeared there had been cast for subscription a large majority of the votes of said city, the number of votes given for subscription being a large majority of all the votes polled at the last general election in said city, and a muc i larger vote than that required by the act aforesaid to authorize said subscription.”

Then follow sections authorizing the mayor to make the subscription, and providing for the execution and delivery o the bonds and coupons.

The defendant interposed six pleas. 1. The general issue.

2. That the bonds were issued without authority of law. 3. That the common council of the city did not, at any time prior to the issue of the bonds, order an election to be held for the purpose of submitting to the qualified voters the question whether or not the subscription should be made, as provided by law. 4. That the city council did not on June 4, 1853, make such an order, submitting such question to the legal voters at an election to be held at the usual place of holding elections in said city, July 13, 1853. 5. That the thirty days’ notice of the election was not given. 6. That no election was held prior to the issue of the bonds, at which a majority of the qualified voters — taking as a standard the number of votes cast at the last general election prior thereto — voted for such subscription, as stated in the ordinance referred to in the bonds, and printed on the back of each of them.

The plaintiff demurred to the second, third, fourth, and fifth pleas, and the demurrer was sustained. There was neither a replication nor a demurrer to the sixth plea.

The case was tried by the court without a jury, and judgment rendered for the plaintiff, whereupon the city sued out this writ of error.

Mr. J. B. Henderson for the plaintiff in error.

No counsel appeared for the defendant in error.

Mr. Chief Justice Waite delivered the opinion of the court.

By a statute of Illinois “ in regard to practice in courts of record, ’ passed Feb. 22, 1872, the plaintiff in a suit upon a written instrument is required to file with his declaration a copy of the instrument sued upon. Rev. Stat. Ill. (1874), c. 110, p. 777, sect. 18. In obedience to this statute, the p aintiff in this case filed with his declaration copies of the onds and coupons declared upon. In this way, we think, the bonds became a part of the pleadings in the case.

provisions of the act authorizing a subscription, and that upon a canvass of the votes “ it appeared that there had been cast for subscription a large majority of the votes of said city, the number of votes given being a large majority of all the votes polled at the last general election in said city, and a much larger vote than that required by the act aforesaid to authorize said subscription.” With this recital, in effect, upon the face of the bonds in the hands of an innocent holder, it was certainly not error in the court below to sustain a demurrer to the second, third, fourth, and fifth pleas, which simply tendered an issue as to the authority of the city to issue the bonds, and as to the fact of the election.

The record does not show that there was either a demurrer or replication to the sixth plea. In Laber v. Cooper (7 Wall. 565), we held that such an objection came too late after a trial and verdict below as if the pleadings had been perfect in form.