Page:Federal Reporter, 1st Series, Volume 10.djvu/667

 DNITED BTATES V, DE VISSEE. 655 �The effect, therefore, of the statute of 1861 is to provide a mode of procedure as to goods not withdrawn within three years, which shall be a substitute for the ordinary course of proceeding by either party upon default in the condition of a warehouse bond like the present. The statute prescribiug this substituted procedure applies as though it formed a part of the bond, and this substitiite is exclusive of any other proceeding, so long as there are goods remaining unsold, be- cause any other course would require acts either directly contrary to the "abandonment" deolared, or would involve inconsistencies and incongruities which seem clearly 'inadmissible. The common-law remedy is, therefore, suspended until after the sale by the "necessary implication" of the statute of 1861, and the case is within the excep- tion to the ordinary rule of construction that a statutory remedy is to be deemed cumulative only, "unless the common-law remedy is negatived in terms or by necessary implication." 2 Inst. 200; Crit- tenden v. Wilson, 5 Cow'. 165 ; Clark v. Brown, 18 Wend. 220 ; Staf- ford v. Ingersol, 3 Hill, (N. Y.) 41; Dudley v. Mayhew, 3 N. Y. 9. It is as though the parties had stipulated in the bond that, in case of default, their remedies, if goods remained on hand, should be first sought in this way, and in no other; the right of action on the part of the govemment being thereby suspended until sale, and the right of payment and subrogation by the surety to the possession of the goods being also eut oli. The surety's obligation becomes, in eiiect, as in the case of Looney v. Hughes, an obligation to make good any deficiency that may arise upon a sale to be had in pursuance of the statute ; and such, also, is the provision of the treasury regulations, (article 138 of 1868; article 764 of 1874,) which direct that from the proceeds of sale shall be paid the duties, charges, expenses, etc., and that "the balance will be collected upon the warehouse bond by suit, if necessary;" and it is for such a deficiency that this suit has been brought. �3. The resuit is that under this statute of 1861 the surety has no right of subrogation, and can neither pay the debt nor resort to his principal for indemnity until after the sale has been had as provided by the statute. He could not discharge the debt and withdraw the goods during the three years, because the express term of credit to the importer or his vendee lasted for that whole period. Under this statute, and the regulations issued in pursuance of it, he could not do so at any time after the three years and before the sale, because im- mediately upon the lapse of the three years the statute cornes in and declares that the goods "shall be deemed abandoned and sold." ��� �