Ladd v. Billings , 15 Mass. 15 ( 1818 )

Parker, C. J.,

delivered the opinion of the Court. The plaintiff cannot maintain this action, unless he prove general or special property of the chattels replevied, solely in himself. For, as tenant in common with William Ladd, he cannot bring replevin; the offi cer having a- right to the whole of the goods under his attachment, to keep the same until execution come. ⁽²⁾ The plaintiff claims only a special property ; and this he would derive from the fact of his having entered the goods, and secured the duties upon them, in the custom-house ; he being principal in the bonds, and having paid the duties as they became due.

But we are of opinion that he did not acquire a lien by these acts, by any principle of the common law, or by virtue of any statute of the United States. The only provision of those statutes is, in favor of sureties, that, if they discharge the bonds for the principal, the right of priority, before enjoyed by the government, is transferred to the sureties. ⁽³⁾

It is true that, if the duties on goods imported are not secured within a time prescribed, they may be taken into custody by the revenue officers; but we think this potential lien cannot be changed into a lien in fact, in favor of the person who undertakes to secure

the duties, by giving bonds as principal, ^(a) Had the consignment taken effect, the * consignees would have had the lien, and not the plaintiff. There seems to be no

principle upon which the action can be maintained. The verdict must therefore, be set aside, and judgment be entered, upon the nonsuit of the plaintiff, for a return of the chattels replevied, with costs. ^(b)

Plaintiff nonsuit.

(2) 2 Mass. Rep. 509, Hart vs. Fitzgerald. — 9 Mass. Rep. 427, Gardner vs. Dutch. — 13 Mass. Rep. 199, Page vs. Weeks.

(3) Stat. of U. S. 5 Cong. 3 Sess. c. 128, § 65.

(a) Badlam vs. Tucker, 1 Pick. 400. — Bridge & Al. vs. Strange, 17 Mass. Rep. 405 —Melville vs. Browne, post, 82.

(b) There can be no valid attachment of goods held by the collector before the d «ties are secured. — Harris vs. Dennie, 3 Peters, S. C. c. 292. — Dennie vs. Harris 9 Pick. 354.-5 Pick. 128.