
    UNITED STATES v. PSAKI et al.
    (Circuit Court, S. D. New York.
    September 27, 1910.)
    Customs Duties (§ 86)—Withdrawal Bond—Construction.
    Certain packages of merchandise having been sent to the public store for examination, the remaining packages were delivered to the importers on bond conditioned that the obligors, within 10 days after the package or packages, designated by the collector and sent to the public store to be opened and examined, had been appraised and reported to him, should return the delivered packages, on demand, to the order of the collector without having been opened. IIeld, that the bond did not require the demand to be made by the collector within 10 days, but that there was no breach of the bond unless the 10 days elapsed without a compliance with the collector’s demand for return of the merchandise so delivered.
    [Ed. Note.—For other cases, see Customs Duties, Cent. Dig. §§ 208-214; Dec. Dig. § 86.*]
    Action by the United States against Nicholas Psaki and others. On demurrer to complaint.
    Sustained.
    Henry A. Wise, U. S. Atty.
    Hatch & Clute, for defendants.
    
      
      For other cases see same topic & $ number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
    
   LACOMBE, Circuit Judge.

The action is upon a bond given upon importation of certain merchandise. Some of the packages were sent to the public store to be opened and examined; the remaining packages were delivered to the importers upon their giving the bond in question. Its condition is that the obligors “shall, within ten days after the package or packages designated by the collector and sent to the public store to be opened and examined have been appraised and reported to him, be returned upon demand to the order of the collector without having been opened.” The complaint avers that defendants did not return upon demand, etc., but is silent as to whether or not the. demand was made within the 10 days.

There is no breach of the bond unless the 10 days elapse without compliance being had with a demand for a return. Failure to demand within the 10 days is not a defense, as was suggested on the argument; demand and disobedience thereof must be shown to establish a breach. If the pleader had set forth the facts, viz., that the goods were appraised and reported on such a date, that demand was made on such a date, and that such demand had not been complied with, he would have stated his case with a specificness which it now lacks.

The demurrer is sustained, with leave to amend the complaint within 10 days.  