Page:Federal Reporter, 1st Series, Volume 10.djvu/666

 654 FEDERAL REPORTEiS. �gobds By the government for iis owa benefit, and without any returns to the owner. �There is no reasonable alternative, therefore, but to hold either tliat the goods may be withdrawn on payment of duties after three years at any time before sale, whieh would seem to be directly con- trary to the provisions of the statutes, and which would revolution- ize the practice of the department, or else that this right is designed to be absolutely prohibited by the aot of 1861, as a matter of policy for the general interests of the government, and that, as a consequence therefrom, the right of suit on the bond is necessarily suspended until after a sale of the goods. The latter construction is, I think, the only one consistent with the language of the statute, and with its apparent intent, as shown by the several acts on the subject above quoted. �The provision for the sale of the goods, moreover, cannot be sep- arated from the clause declaring them "abandoned to the govern- ment." The sale directed by the statute is evidently designed to be associated with, and consequent upon, the abandomnent previously declared. It is, therefore, a part of the statutory proceeding adjudg- ing the abandonment of the goods ; and the ordinary rights of either party incompatible with the course of procedure so enacted, includ- ing any subsequent payment, or withdrawal of the goods, or suit by the government before sale, must be deemed superseded by it. �The case is analogous to that of Looney y. Hughes, 26 N. Y. 514, where suit was brought against the sureties of a town tax collecter, npon a bond conditioned generally for the faithful performance of bis duties. A statute required the county treasurer to issue a war- rant to the sheriff to collect from the collector any deficiency in his returns; and, if uncollected, to report to the supervisors the amount remaining due, who were ordered by statute forth with to put the bond in suit and to recover the sum due. Selden, J., says, (p. 517,) that upon these statutory provisions "a recovery upon the bond accord- ing to the rule of the common law" (i. e., by suit immediately on the collector's default) "appears inadmissible." "Can an action be com- menced to recover this sum before the amount is ascertained, or be- fore it is ascertained that any sum whatever will remain uncollected ? I think, clearly not. * * * The same instrument can hardly bear two different constructions, and be subject to two different rules of damages for the same identical breach. It would seem, therefore, that no action could be maintained upon the bond until after tha issue and return of the warrant authorized by section. 13." ��� �