This case presents the following facts: D. W. McClung held the office of collector of customs and surveyor of the port of the city of Cincinnati, under the laws of the United States, and J. L. Wartman was employed by him, with the approval of the secretary of the treasury, as deputy collector of customs. As such deputy Wartman acted as the cashier of the collector. Section 10 of the act of June 10, 1880, c. 190, (21 St. 175,) is as follows: 'That whenever the proper officer of the customs shall be duly notified in writing of the existence of a lien for freight upon imported goods, wares, or merchandise in his custody, he shall, before delivering such * * * merchandise to the importer, owner, or consignee thereof, give reasonable notice to the party or parties claiming the lien; and the possession by the officers of customs shall not affect the discharge of such lien, under such regulations as the secretary of the treasury may prescribe; and such officer may refuse the delivery of such merchandise from any public or bonded warehouse, or other place in which the same shall be deposited, until proof to his satisfaction shall be produced that the freight thereon has been paid or secured; but the rights of the United States shall not be prejudiced thereby, nor shall the United States or its officers be in any manner liable for losses consequent upon such refusal to deliver. If merchandise so subject to a lien, regarding which notice has been filed, shall be forfeited to the United States and sold, the freight due thereon shall be paid from the proceeds of such sale in the same manner as other charges and expenses authorized by law to be paid therefrom are paid.' This is part of 'An act to amend the statutes in relation to immediate transportation of dutiable goods.'
The Cleveland, Columbus, Cincinnati & Indianapolis Railroad Company was a common carrier, and as such designated by the secretary of the treasury for the purpose of receiving and transporting dutiable goods from the port of arrival to the port of destination under this act of congress. As such carrier, so designated, this company carried to Cincinnati large quantites of dutiable goods, the freight and charges upon which amounted in the aggregate to $8,477.50, and placed them in the custody and control of McClung as collector of customs and surveyor of the port, and, as is claimed, notified him in writing of its lien as carrier for such freight and charges. Wartman, as deputy collector, had charge, under McClung, of the collection of customs payable at the port of Cincinnati, and of the delivery of imported merchandise to the consignees thereof. He received the freight and charges due the company from the consignees of these goods at the same time that he received the duties, and delivered the goods to the consignees without notifying the company. The charges were never paid by him either to the company or to McClung.
Such being the conceded facts, this suit was brought against McClung in the superior court of Cincinnati. In the petition it is averred that McClung was collector, etc.; that the railroad company had carried and delivered the goods to him under the act, charged with a lien thereon for freight, of which due notice was given to him in writing, as provided in the act; and 'that it became and was the duty of the defendant, as such officer, to refuse to deliver the said goods and merchandise until such freight thereon had been paid to the common carrier.' It is then averred that the consignees paid the charges due the company to the defendant, 'and the defendant then and there received' the same 'for the account and benefit of the said * * * company, and the defendant then and thereupon caused the said goods and merchandise to be delivered to the consignees, * * * without notice to the railroad company, whereby its lien for said freight was lost;' and that 'the defendant, though often requested, has not paid said' money to the plaintiff, but the same, 'with interest from September 8, 1881, is now due and unpaid from the defendant to the plaintiff.'