(dissenting).
I dissent. This is a suit at law against W. W. Erskine for duties upon certain calculating machines which were imported from Bremen. They were consigned to Lunham & Moore, importation brokers, who were, for the purposes of the Tariff Act, deemed to be the owners thereof. 19 U.S.C.A. § 344. This provision of the law, making the consignee the owner for the purposes of the Tariff Act, has been in effect since 1799. Lafontan v. Elting, Collector (D.C.) 54 F.(2d) 664; see, also, Meredith v. United States, 13 Pet. 486, 493, 10 L.Ed. 258. Tariff duties constitute a lien upon the imported goods, and the importer is personally liable therefor. Meredith v. United States, supra. The consignee can shift liability to the owner by filing the declaration required by the statute (19 U.S.C.A. § 355) and producing within 90 days a declaration from the owner that he will pay the duties. The consignee made such a declaration showing that W. W. Erskine, Inc., was the owner, and within 90 days produced a declaration signed by W. W. Erskine stating in effect that he was the owner of the goods and would pay the duty thereon.
Testimony was introduced tending to show that W. W. Erskine was' not the owner of the goods, and that he signed the declaration individually by mistake; that he intended to sign the name of the corporation, “W. W. Erskine, Inc.” At the close' of the evidence the appellant made a motion for judgmént, thus challenging the sufficiency of the evidence to support a judgment in favor of the government. This motion was denied and the appellant assigns as error the ruling thereon. Our review of the case is confined to a consideration of this ruling. I think it must be conceded that the evidence is sufficient to support a judgment holding that W. W. Erskine was the actual owner of the imported machines. The declaration by Erskine. as to his ownership and willingness to pay the additional duties, if any, is sufficient to sustain a judgment based upon his ownership. There was contradictory evidence to the effect that the actual ownership of the property was in the corporation named “W. W. Erskine, Inc.” But the trial court to whom the case was submitted by written stipulation without a jury was not required to believe this evidence as against the statement of the appellant. So far as this court is concerned, we have a simple condition of conflicting evidence as to which the decision of the trial judge is conclusive. It is true that the declaration signed “W. W. Erskine” is in printed form and uses plural pronouns, but I think this is without significance where the document is signed by an individual. If this view of the situation is correct the legal question involved is whether or not the owner of imported goods who has signed an agreement to pay the duty, is liable for those duties. Notwithstanding the fact that the brokers who were the consignees have failed to comply with the statutory requirements for shifting the liability from themselves to the owner in that in their declaration under 19 U.S. C.A. § 355, they named the corporation, W. W. Erskine, Inc., as the owner, whereas the real owner was W. W. Erskine. If the liability of the real owner who formally declares his ownership and agrees to' pay the tax is dependent upon the exculpation of the consignees, then it is clear that the owner is not liable because of his declaration of ownership and intention to pay the tax. I see no reason, however, for concluding that the obligation of the real owner is dependent upon the exculpation of his brokers who are consignees. The duty is imposed upon the goods themselves and is a lien thereon. It is thus in legal effect a charge upon the owner of the goods, regardless of who the owner may be, to the extent of the value of the goods.
Justice Story, speaking for the court in Meredith v. United States, supra, made *695the following statement in that regard: “Now, in the exposition of statutes laying duties, it has been a common rule of interpretation, derived from the principles of the common law, that where the duty is charged on the goods, the meaning is, that it is a personal charge on the owner, by reason of the goods. So it was held in Attorney General v. -, 2 Anstr. 558, where a duty was laid on mash in a still; and it was said by the court, that where duties are charged on any articles, in a revenue act, the word 'charged’ means, that the owner shall be debited with the sum; and that this rule prevailed even when the article was actually lost or destroyed, before it became available to the owner. Nor is there anything new in this doctrine; for it has long been held, that in all such cases, an action of debt lies in favor of the government, against the importer, for the duties, whenever, by accident, mistake or fraud, no duties, or short duties,.have been paid.”
The provision of the statute declaring the consignee to be the owner for the purpose of the act is to prevent fraud upon the government. Lafontan v. Elting (D.C.) 54 F.(2d) 664, supra; United States v. Fawcett (C.C.) 86 F. 900.
The same statute which makes the consignee the owner for the purpose of the act specifically provides for a method by which the real owner may charge himself with the payment of the duties, that is, by filing a declaration of ownership and agreement to pay the tax. If the real owner does this it would seem to be wholly immaterial as to whether or not the broker, who is consignee, is relieved from obligation to pay the tax because of this declaration. The basic obligation to pay duty is upon the owner of the imported goods, whether we look at the proposition from the standpoint of the lien on the goods or from the basic obligation to pay. The obligation is placed upon the consignee, who may merely be his agent as a matter of convenience to the government. As the Supreme Court said in Meredith v. United States, supra: “We have no doubt, that these bonds, being voluntary bonds, are valid; and that Hollins and his sureties are estopped to deny their validity.” By parity of reasoning it would seem to follow that if we view the declaration of the owner in the case .at bar as voluntary in that it was ineffective for the purpose intended, namely, of exculpating the brokers, it would still constitute a valid written agreement to pay the duties.
The judgment should be affirmed.