application thereto of the proceeds of the sale brought the case here on writ of error, insistof the trust property, and an order for execu-ing that the Act under which he was indicted tion thereof as at law. This is such a decree in such a suit and it is, consequently, affirmed.

and convicted, is in conflict with the concluding clause of the 1st section of the 14th Amendment of the Constitution, which declares that no James H. McKenney, Clerk, Sup. Court, U. S. State shall "deny to any person the equal protection of the laws."

Section 4189 of the same Code declares that The defect in the argument of counsel, con"If any white person and any negro, or the de- sists in his assumption that any discrimination scendant of any negro to the third generation, is made by the laws of Alabama in the punishinclusive, though one ancestor of each genera-ishment provided for the offense for which the tion was a white person, intermarry or live in adultery or fornication with each other, each of them must, on conviction, be imprisoned in the penitentiary or sentenced to hard labor for the county for not less than two nor more than seven years."

offense against which this latter section is aimed | Mr. Justice Blatchford delivered the opincannot be committed without involving the per-ion of the court:

sons of both races in the same punishment. What- On August 2, 1865, the firm of Grinnel, Minever discrimination is made in the punishment turn & Co., being the owners of 580 packages prescribed in the two sections is directed against of sugar, imported from abroad, entered them the offense designated and not against the per- at the custom-house in New York by a wareson of any particular color or race. The pun-house entry, and thereupon the members of that ishment of each offending person, whether white firm, as principals, and one Clark, as surety, exor black, is the same. ecuted under their hands and seals and delivered Judgment affirmed. to the collector a warehouse bond, conditioned True copy. Test: that the bond should be void if the principals, James H. McKenney, Clerk, Sup. Court, U. S. "or either of them, their or either of their heirs,

executors, administrators or assigns," should, "on or before the expiration of one year from the date of the importation" of the said goods,

JOHN W. MINTURN ET AL., Plffs. in Err., withdraw them, "in the mode prescribed by law,

delivery to Camp of the residue of the sugars in bond, by writing and signing at the foot of the withdrawal entry made thereof by his said brokers, the following consent: "We authorize Wylie & Wade to withdraw the goods described in this entry. Gibson, Early & Co." No formal notice of this sale to Camp was given to the collector or any other officer of the customs. This last authority to withdraw was presented in due course by said brokers, when they desired to withdraw the goods. This was done on September 4, 1865, when they made a withdrawal entry of the residue of the sugars, the weight of which was 361,996 pounds. The duty at three cents per pound was $10,859.88. But the collector demanded as duties only $9,352.89, being at the rate of three cents per pound on 311,763 pounds, leaving due, as duties, $1,506.99. The goods were delivered to the brokers, and were of greater value than the duties chargeable on them. This was done without the knowledge or consent of Grinnel, Minturn & Co. The first knowledge or notice they had of the withdrawal without the payment of full duties, was a notice from the collector, December 6, 1867, as to the amount so remaining un-pared with the record, on the warehouse books, paid. Before that time the brokers had become insolvent, and Gibson, Early & Co. became insolvent before the trial of this suit. The United States having brought suit on the bond against the obligors in it, to recover the $1,506.99, with interest, a jury was duly waived, and the court, having found the foregoing facts, found the following conclusions of law: (1) that the facts constituted no bar to a recovery; (2) that, if the defendants were to be regarded as sureties, after the transfer of the title to the property in bond, instead of principals, they stood in no better position; (3) that the laches of the custom-house officers, in delivering the goods without collecting the whole of the duties, could not affect the plaintiffs, as the United States were never bound by the laches of their agents, nor could the defendants set up such laches as a discharge of their obligation; (4) that the plaintiffs were entitled to judgment. The defendants excepted to each of said conclusions of law, a judgment was rendered for the plaintiffs for $3,096.11, and the defendants brought this writ of error.

times aforesaid, well known and understood, and the established and settled practice at the custom-house in New York was to treat the party holding such consent for withdrawal, and him only, as the person entitled to withdraw and receive the goods on payment of the duties; and, upon the payment by him of the duties remaining due thereon, and not otherwise, to issue a written permit for the actual delivery to him of said goods out of warehouse; and that, during the period covered by the transactions hereinbefore set forth, the following regulations of the Treasury Department were in force, to wit: 'Art. 442. The entry for withdrawal of merchandise from warehouse for consumption, at port of original importation, shall be made by the party in whose name the merchandise was warehoused, or by some person duly authorized for the purpose by him, and in either case, shall be signed by the party making the withdrawal. This entry shall exhibit the marks and numbers of the packages, the description and quality of the goods, and the dutiable value of the same. On presentation to the proper officer in the collector's office, it shall be com

of the original warehouse entry; and, if found correct, be properly entered therein, the warehouse bond number indorsed thereon, and the amount of duties payable estimated. From the collector's office it shall then be taken by the importer to the naval office, where a similar comparison shall be made with the warehouse records of that office, and the estimate of duties verified and indorsed upon the duplicate entry. The amount of duties thus ascertained having been paid, a permit will be issued for the delivery of the goods. Art. 443. Merchandise in bulk, liquors, sugars, molasses, cocoa, pepper and other articles bought and sold by weight, when withdrawn for export or transportation, must be entered for such destination at the actual quantities on which duties were estimated at the time of arrival in the United States and, to secure this, weighers, measurers and gaugers will be required to mark on each package its contents, as determined by them on its entry for warehouse. On these quantities, the duties on export and transportation entries will be estimated. Goods withdrawn for consumption may be takThe court below also found, as facts, "That it en at average valuations, care being had that was the established and uniform usage of trade on the last withdrawal the entire balance of duty in New York, at the times of said sales and deliv- be collected. Art. 444. Should the final witheries and long before, for importers to make drawal entry be for export or transportation, sales of imported goods, which were in ware- and there be any difference between the actual house in bond, the purchaser on such sales assum-duty and the amount to close the sum due on ing the payment of the duties thereon, and being allowed and credited by the seller with the amount of the duties so assumed, as so much paid on account of or deducted from what would otherwise have been the purchase price; and for the seller to make delivery of said goods in bond, by signing a written consent to the withdrawal of said goods by the purchaser; and it was also in accordance with such usage and custom for successive sales and deliveries of goods in bond to be made, on similar terms and in the same manner, so long as any of such goods remained in warehouse, the last purchaser withdrawing the goods under the written consent so received by him upon and as the delivery thereof, and paying the duties thereon on such withdrawal; that the said custom and usage were, at the See 16 OTTO. U. S., Book 27.

the warehouse entry, the excess, if any, shall be refunded on the last withdrawal for consumption, and the deficiency, if any, collected on amendment to said entry.'"

The contention for the plaintiffs in error is, that, by the substitution for a credit system, in the payment of duties, of a deposit of the goods in warehouse, subject to a withdrawal for consumption only on the payment of duties, involving the holding by the United States of possession of the goods in the meantime, such possession became the primary security for the duties, and the obligors in the bond were thereafter merely sureties, and were wholly released because the officers of the United States parted with the possession of the goods without exacting payment of the duties.

14

209

The Warehouse Act of August 6, 1846, 9 Stat. | amount of duties is paid, whatever fraud or negat L., 53, sec. 1, amendatory of section 12 of ligence there may be in parting with the posthe Act of August 30, 1842, 5 Stat. at L., 561, session of the goods without the payment of provides that, on an entry of goods for ware- the true amount of duties. There was no power housing, the goods shall be taken possession of in any officer of the Government to alter the by the collector, and deposited in the public terms or effect of this contract, and destroy the stores, there to be kept, subject at all times to obligation of the bond, by giving up the goods the order of the owner, importer, consignee or without the payment of the duties. The same agent, "Upon payment of the proper duties and statute required the holding of the goods and expenses, to be ascertained on due entry there- the taking of the bond. The cases in which of for warehousing, and to be secured by a bond it has been held that the United States had partof the owner, importer or consignee, with surety ed with rights, by reason of acts done to the or sureties to the satisfaction of the collector, prejudice of persons who had contracted with in double the amount of said duties, and in such them, have all been cases where there was auform as the Secretary of the Treasury shall pre- thority of law to do such acts. In U. S. v. scribe.' It is contended by the plaintiffs in er- Hillegas, 3 Wash. C. C., 75, it was held by Mr. ror, that a private creditor, standing in the same Justice Washington, that acts of officers of the relation to them and to the goods which the United States, acting within their proper spheres, United States occupied under the warehousing and to be imputed to the United States and consystem, as provided for by the statute and as sidered as the acts of the United States, in expractically administered, could not have volun- tending the time for the payment of the debt tarily surrendered the goods which had been due from a principal in a bond, discharged the placed in his hands as security for the payment sureties in the same bond, they not having of the debt, and which were available for that known of or consented to the extension. The purpose, without requiring payment of the debt, same principle was applied by Mr. Justice otherwise than with the consent of the plaint- Thompsop, in U. S. v. Tillotson, 1 Paine, 306, iffs in error, without discharging them from to the case of the alteration of a contract by the their liability; that the United States are entitled United States without the consent of the sureto no other or higher right than a private credit- ties for its performance. But in the present or would be entitled to in the same case; and case, the giving up of the goods without the paythat the consent of the importers to the with- ment of the duties was an act not only not unaudrawal of the goods by Gibson, Early & Co., thorized, but forbidden by the statute. was not a consent unconditionally to their delivery, or to their delivery without the payment of duties, but only to their withdrawal from warehouse in the manner and upon the terms and conditions prescribed by law and by the Treasury regulations and by usage, namely: after all duties thereon had been first paid, and not otherwise.

The warehousing statute, above cited, provides that warehoused goods shall be subject to the order of their owner, on payment of the duties. Therefore, no order of the plaintiffs in error could become operative to effect any rights of the United States, unless the duties on the goods to be affected by the order were paid. Moreover, the provision as to the deposit of the goods, and their retention till the duties on them are paid, is coupled with the provision for the securing of the duties by the bond. Evidently, the intention of the statute was, to superadd to the security of the holding of the goods, the security of the bond, so that, in case of a delivery of the goods by fraud, or mistake, or negligence in the officers of the Government, the security of the bond should remain. The form of the bond taken was such, that while, in connection with the regulations and the usage, commerce was favored by the privilege of dealing in warehoused goods, it was clearly intended to hold the obligors responsible if any purchaser from the importers should obtain the goods on their order without paying full duties. The condition is, that the bond shall be void if they or their "assigns" shall withdraw the goods and pay the " true amount" of duties. The bond is not to become void on any other condition, and it is not to become void, unless in addition to the withdrawal of the goods, the true amount of duties is paid. This view shows that the parties have contracted to be and remain principal debtors to the United States until the true

The question presented by this case is not a new one, in this court. In Hart v. U. S., 95 U. S., 316 [XXIV., 479], in a suit brought by the United States against the principal and sureties, on a distiller's bond, to recover taxes on spirits distilled by the principal, the sureties pleaded that the taxes were a lien on the spirits, and that the collector, without the knowledge or assent of the sureties, and without first requiring the payment of the taxes thereon, permitted the principal to remove from the distillery warehouse, distilled spirits more than sufficient in value to pay the demand. This court held, that as, under the statute, no distilled spirits could be removed from the warehouse before payment of the tax, and no officer of the United States had authority to dispense with the requirement of the law, the United States were not bound by the acts of the collector; and the prior cases of U. S. v. Kirkpatrick, 9 Wheat., 720; U. S. v. Van Zandt, 11 Id., 184; U. S. v. Nicholl, 12 Id., 505; Gibbons v. U. S., 8 Wall., 269 [75 U. S., XIX., 453]; and Jones v. U. S., 18 Wall., 662 [85 U. S., XXI., 867], were cited as establishing that the Government is not responsible for the laches or the wrongful acts of its officers; and it was said by the Chief Justice delivering the opinion of the court: Here the surety was aware of the lien which the lawgave as security for the payment of the tax. He also knew that, in order to retain this lien, the government must rely upon the diligence and honesty of its agents. If they performed their duties and preserved the security, it inured to his benefit as well as that of the Government; but if, by neglect or misconduct, they lost it, the Government did not come under obligations to make good the loss to him, or, what is the same thing, release him pro tanto from the obligation of his bond. As between himself and the Government, he took the risk of

and judgment in favor of the plaintiffs for $16,453.61; whereupon the defendant sued out this writ of error.

The facts of the case are fully stated by the court.

Messrs. Alfred B. Pittman and W. B. Pittman, for plaintiff in error.

Messrs. Jefferson Chandler and William K. Ingersoll, for defendants in error.

the effect of official negligence upon the security which the law provided for his protection against loss, by reason of the liability he assumed." These views are conclusive to show that the importers as well as their surety, are liable on the bond in this case. If the importers could be regarded as having always been, or as having at any time become, sureties only in respect of the duties, with the goods as the primary security (a position shown to be wholly untenable), it is well settled, by the decisions of this court, that the negligence of the officers of the Government does not affect the liability This is an action of assumpsit, commenced by of a surety in a bond any more than it does that the defendants in error by the issuing of a writ of his principal. U. S. v. Kirkpatrick [supra]; of attachment, according to the practice as preC. S. v. Van Zandt [supra]; Dox v. Postmaster-scribed by the laws of Mississippi, the plaintiffs General, 1 Pet., 318.

The judgment of the Circuit Court is affirmed.
True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S.

JOHN J. FITZPATRICK, Surviving Partner of FITZPATRICK BROTHERS, Piff. in Err.,

0.

CHARLES M. FLANNAGAN ET AL.

(See S. C., 16 Otto, 648-660.)

Amendment of affidavit for attachment-power of surviving partner-Mississippi Code Statute of Frauds-writ of error, effect of.

ment.

1. Under section 1483 of the Code of Mississippi, which expressly authorizes amendments to defective affidavits, an affidavit for attachment may be amended by adding a new ground for the attach2. Upon the death of one of the partners, unless a partnership creditor or the personal representatives of the deceased partner commence a proceeding to liquidate the affairs of the partnership, there is nothing to prevent the surviving partner from dealing with the partnership property as his own and, acting in good faith, he may make valid disposition 3.Under the Mississippi Code, section 1420, a debtor, in insolvent or in failing circumstances, may give a preference to one or more of his creditors, if it be bona fide and with no intent to secure a benefit to himself.

of it.

4. A verbal promise, objectionable under the Statute of Frauds, may be made valid by being afterwards repeated in writing; and a subsequent promise, with full knowledge of the facts, is equivalent to an original promise made under similar circumstances.

5. A writ of error upon a final judgment brings up the whole record, including a judgment on a plea in abatement.

[No. 111.]

Argued Dec. 5, 1882.

Decided Dec. 18, 1882.

IN ERROR to the Circuit Court of the United
States for the Southern District of Missis-

sippi.

This was an action of assumpsit, commenced by attachment in the court below, by the defendants in error, to recover an alleged indebtedness amounting to $15,936.55. The preliminary trial of an issue raised as to the validity of the attachment, resulted in a verdict and judgment in favor of the plaintiffs with leave to the defendant to plead to the merits.

The trial on the merits resulted in a verdict

NOTE-Rights and powers of surviving partners. See note to Moore v. Huntington, Admrx., 84 U. S.,

XXI., 642

Mr. Justice Matthews delivered the opinion of the court:

below being citizens of Missouri. The process of attachment was founded on an affidavit, which set forth that the plaintiff in error, as the surviving partner of the firm of Fitzpatrick Brothers, composed of himself and his brother James C. Fitzpatrick, deceased, was the legal owner of the partnership property; that the defendant, as such survivor, was indebted to the plaintiffs in several sums, evidenced by partnership obligations, as well as in a sum of $6,000, for a debt contracted by James C. Fitzpatrick and Eugene A. Forbes, then partners under the name of Forbes & Fitzpatrick, and which had, on the dissolution of that firm, by the retirement of Forbes, been assumed by the firm of Fitzpatrick Bros., which debt was evidenced by the promissory note of Forbes & Fitzpatrick, held by the plaintiffs. The whole indebtedness, for which suit was brought, was alleged to amount to $15,936.55. The affidavit then charged that "The said John J. Fitzpatrick has property or rights in action which he conceals and unjustly refuses to apply to the payment of his debts, and that he has assigned or disposed of or is about to assign or dispose of his property or rights in action, or some part thereof, with intent to defraud his creditors, or give an unfair preference to some of them; and that he has converted or is about to convert his property into money or evidence of debt, with which to place it beyond the reach of his creditors." And suggesting that John McGinty, Edward McGinty and George M. Klein, Cashier of the Mississippi Valley Bank, are indebted to the defendant, or have property of his in their hands, etc., the affidavit prays for a summons against them as garnishees.

of attachment was issued, which the marshal reThe statutory bond having been given, a writ turned as served, by levying upon and taking possession of certain personal property, according to an inventory attached, as the property of the defendant; and that afterward Edward

McGinty, having made claim that he was the owner of the property attached, and the same having been valued, and a claimant's bond given and accepted, he had turned said goods over to said McGinty, and had summoned the defendant and the garnishees.

The defendant below then, in due time, filed a plea in abatement to the writ of attachment, denying the several grounds thereof as alleged in the affidavit; and on the same day the plaintiffs, by leave of court, filed an amendment to the affidavit, setting forth "that the firm of Fitzpatrick Brothers, composed of defendant and James C. Fitzpatrick, deceased, and of which he is the surviving partner, fraudulently