United States v. One Stradivarius Kieserwetter Violin, No. 119

No. 119 | 2d Cir. | May 13, 1912

NOYES, Circuit Judge

(after stating the facts as above). The only question which it is necessary to consider in this case is whether the proceedings were barred by the statute of limitations.

Concededly the forfeiture “accrued” more than three years before the action was instituted, and the statute is a bar unless the case comes within the proviso relating to the concealment of the property.

The concealment which prevents the running of the statute must be some act which places the property in a situation which tends to prevent its discovery. Something must be done which prevents or hinders the governmental authorities from obtaining, in the exercise of ordinary diligence, information concerning the property. Whether a fraudulent motive must in all cases be shown need not be determined. But there must always be acts of an affirmative character. Mere failure to give information is not enough. Silence with or without knowledge is not concealment.

In this case there seems to have been no attempt to secrete the violin. It was kept on Mr. Havemeyer’s library table, at his residence at New York. It was exhibited to many guests, including well-known violinists, at musicales, and was pointed out as the famous “Kieserwetter Strad.” Short of making a public exhibition of 'the violin or notifying the customs authorities, there was little more that could have been done to publish the presence of the violin. But Mr. Ilavemeyer was not obliged to publicly exhibit, and, as we have seen, even if he had knowledge of the unlawful importation, he did not conceal by keeping silent. In our opinion, the proof failed altogether to show any concealment within the proviso of the limitation statute.

The doctrine of the fraudulent concealment of a cause of action is inapplicable upon the facts here presented and in this kind of a case.

The judgment of the District Court is affirmed.