The United States v. Boyd.

though the goods are forfeited for non-payment of duties. The authorities are cited in the opinion of Story, J., in United States v. Lyman, (1 Mason, 481.) Where goods were smuggled, or where the possession of the goods was relinquished by the customs officer through fraud or mistake, the duties were recovered in the English Exchequer by information, and the importer might be called upon by information in equity to disclose the amount and value of the goods, for the purpose of ascertaining the amount of duties payable. (Atty. Gen. v. Cressner, 1 Parker's R., 279.) In the case of Meredith v. United States, (13 Peters, 486,) where the language of the statute imposing duties upon imported merchandise. was substantially the same as that employed in the statutes in force when the merchandise in suit was imported, the Supreme Court held that the right of the Government to the duties accrues, in the fiscal sense of the term, when the goods arrive at the port of entry; and that the debt for the duties is then due, although it may be payable afterwards according to the regulations of Acts of Congress, as where a bond is given for the duties, or a deposit of the goods is made by the importer, in which case the importer is entitled to the time of credit allowed by law. There are many other decisions of the Supreme and Circuit Courts to the same effect, which need not be cited, but it is proper to refer to the cases of United States v. George, (6 Blatchf. C. C. R., 406, 415,) and United States v. Cobb, (11 Fed. Rep., 76,) as bearing more directly upon the questions involved here. In the first of these cases Benedict, J., uses the following language: "It is said there could be no legal liability for duties, because no duties can be 'collected, levied and paid,' as duties, unless the merchandise is in the possession and control of the Government; that, as soon as property is fraudulently withdrawn, the power to collect duty ceases, and fines, penalties and forfeitures are imposed. But the law is otherwise. Duties are not simply a charge upon the merchandise, to be collected only by the custody of the property. They are also a personal charge against the importera debt created by law, which may be collected by a civil ac

The United States v. Boyd.

tion, wholly irrespective of the possession and custody of the goods." The case of United States v. Cobb is directly in point. There certain merchandise had been so classified by the instructions of the Secretary of the Treasury as to permit it to be imported free of duty, and, although dutiable, by oversight, was entered free, and was delivered to the importers without examination or appraisement. A suit was subsequently brought to recover the duties to which the merchandise was subject and the Court held the action maintainable. The Court said: "They (the duties) are due although the goods have been smuggled, or for any reason never come into the hands of the customs officers, or the statute proceedings have never been instituted, or, through accident or mistake or fraud, no duties or short duties have been paid; and the importer is not discharged from his debt by the delivery to him of the goods without payment."

It is not necessary to decide whether the Government can at the same time proceed for a forfeiture of the merchandise for the non-payment of duties and for a recovery of the duties in an action of debt, as that question does not arise upon the pleadings.

Upon principle, it would seem very plain that the defendants, who have deprived the Government, by their fraudulent acts, of an opportunity to appraise the goods and liquidate the duties, cannot complain because such proceedings were not taken.

The demurrer is overruled.

John P. Clarke, (Assistant District Attorney,) for the United States.

Stephen G. Clarke, for the defendants.

In re Charles S. Rindskopf.

IN THE MATTER OF CHARLES S. RINDSKOPF.

Where the examination in New York of a witness de bene esse, under § 863 of the Revised Statutes, in a cause pending in the District of Minnesota, is completed as to the direct examination, and he refuses to appear for cross-examination because the party calling the witness wishes to withdraw the proceed. ing, the Circuit Court of the United States in New York will compel the witness to appear and submit to cross-examination.

(Before WHEELER, J., Southern District of New York, July 29th, 1885.)

WHEELER, J. This is a motion for an attachment to compel the appearance of a witness for cross-examination, whose deposition had been taken de bene esse, pursuant to notice, to be used in a cause pending in the District of Minnesota, to which the witness is a party, and on appearance by the opposite party, through an examination in chief, and who refused to appear for cross-examination at a time to which the examination had been adjourned for that purpose, because the proceedings for taking the deposition had been attempted to be withdrawn by the party initiating them, and notice of the withdrawal had been given to the attorney of the opposite party. The only question argued is, whether the party who commenced the taking of the deposition had the power to stop it at that stage. The statute provides, that the witness may be compelled to appear and depose in the same manner as witnesses may be compelled to appear and testify in Court. (Rev. Stat., sec. 863.) Whether the power of compulsion is to be found with the authority taking the deposition, or in the Courts of the District in which it is taken, is not clearly shown by the statute. The learned author of Conkling's Treatise inclined to the latter view, and no book or case has been observed to the contrary. (Conkling's Treatise, 2d ed., 254.) As the counsel have not questioned the propriety of this mode of procedure, it is assumed, for the purposes of

Thayer v. Hart.

this motion, to be correct, without further expression of opinion.

The testimony is to be carefully reduced to writing, by the authority before whom it is taken, or by the witness in that presence. (Sec. 864.) And it is to be personally delivered or transmitted under seal to the Court itself, before which the cause is pending. The party who started the tak ing of it appears to have no right to its custody or to its suppression. The authority taking it appears to represent the Court pro hac vice, for the purpose of authenticating the testimony of the witness and preserving it for the trial, according to its admissibility and weight. When taken, it is taken in the cause, for the use of either party, according to its relevancy and competency. The party making this motion was interested in the testimony that was taken, and seems to have the right to have it affected by cross-examination as it might be, whether used by one party or the other. It seem, therefore, that the witness should appear, and the examination be completed. As the refusal appears to have been made under a claim of right, in good faith, no more than this is now required.

The motion is granted accordingly.

George Zabriskie, for the motion.

Stern & Myers, in opposition.

HIRAM H. THAYER vs. WILLIAM H. HART, JR. IN EQUITY.

Where a bill in equity, in a suit for the infringement of letters patent, is dismissed, with a decree for a certain sum, as costs, in favor of the defendant, and an execution therefor is returned unsatisfied, the Court will not, on a

Thayer v. Hart.

motion in the suit, appoint a receiver of the patent, as an equitable asset, to be disposed of to satisfy the decree.

The remedy is by bill in equity.

(Before WHEELER, J., Southern District of New York, July 29th, 1885.)

WHEELER, J. The bill in this case, which is for infringement of patents, has been dismissed, with costs to the defendant, taxed at $950.92, for which execution issued, and has been returned wholly unsatisfied. The defendant now moves for a receiver of the patents, as equitable assets, to be disposed of for the satisfying of the decree.

This decree, so far as it is for the payment of this sum for costs, is not different from a judgment for the recovery of money. Execution issues upon it under the rule of the Supreme Court, made pursuant to statute, the same as upon judgments for money. (Rev. Stat., sec. 917; Equity Rule 8.) There is no connection between the decree for costs and the relief sought, neither is it of any equitable nature otherwise. The costs are recovered because the bill was not sustained, as costs are in actions at law, when the suit is not maintained. The satisfying of the decree is no more equitable relief than the satisfying of any money judgment is. Courts of equity have power to aid in the satisfaction of judgments at law, by reaching assets which Courts of law cannot reach. This is done upon bill brought to reach particular property, and the bill is to be answered, or proceeded upon for want of answer, as in other cases; and the decree is founded upon the case made in respect to the property, although the right to proceed against the property rests upon the prior judgment. Here the defendant has got no further than to become a judgment creditor of the plaintiff. These patents, as equitable assets, cannot be taken to satisfy a money judgment, except upon a decree for that purpose, which can only be had upon bill and answer, or failure to answer in due course. The remark of the learned judge in Shainwald v. Lewis, (7 Sawyer, 162,)