Yznaga et al. v. Peaslee. vice; and if any loss or injury be sustained in the navigation of the vessel while under his charge, he is answerable as strictly as if he were a common carrier for his default, negligence, or unskilfulness; and the owner also is responsible to the party injured by the act of the pilot, as being the act of his agent. 3 Kent's Com. (9th ed.) 243. See also Haggett v. Montgomery, 5 Bos. & Pull. 466; Attorney-General v. Case, 3 Price, 302; Abb. on Ship. (5th Am. ed.) p. 220. Upon the whole case, I am of the opinion that the decision of the District Court was correct, and the decree there made is accordingly affirmed, with costs. ANTONIO YZNAGA et al. v. CHARLES H. PEASLEE. Where sugar imported into the United States is appraised by samples which were drawn from the packages by the person called the sampler, and were delivered by him to the local appraisers, and the examination was made by them without having seen the packages, held, in the absence of any objection by the importers as to the manner of drawing the samples, or to their identification, that it was a substantial compliance with the requirements of the act of Congress authorizing the appraisal in such a case to be made by samples. And where, upon appeal to merchant appraisers, the samples were, after the decision of the local appraisers, placed in the depository in the appraisers' department, and were there kept until the meeting of the merchant appraisers, and were then produced by one of the local appraisers, and no objection as to the identity of the samples being then made by the importers, held, that all objections which might have been taken at the appeal were waived by the importers. If the samples are fairly selected from one in ten of the packages, and are fully identified, it is of no importance whether they were drawn from the packages by the appraisers themselves or by the official sampler of the appraisers' department. THIS was an action of assumpsit brought by the plaintiffs as importers of foreign merchandise, against the defendant as collector of the port of Boston, to recover back an alleged excess of duties which they had previously paid on an importation from Trinidad, of two hundred hogsheads of Muscovado sugars. The goods were entered at the custom-house at Boston for warehousing at the public stores, October 28, 1853. Certain additions Yznaga et al. v. Peaslee. were made to the invoice value by the importers at the time of the entry, so that the entry value amounted to seven thousand seven hundred and fourteen dollars. To this amount the local appraisers added six hundred and ninety-six dollars and twentythree cents. The importers appealed to merchant appraisers, but they returned the same sum, making the dutiable value of the importation eight thousand four hundred and ten dollars and twenty-three cents. Duties were accordingly calculated on that basis, and the appraised value exceeding by ten per cent the value declared in the entry, a duty of twenty per cent in addition to the duties otherwise imposed by law was levied and claimed by the collector. The local appraisers reported December 23, 1853; and the merchant appraisers, January, 1854. On the 2d and 3d of February the goods were withdrawn from the warehouse and the duties paid under protest. None of the hogsheads containing the sugars were actually examined by the local appraisers, nor were the sugars at any time seen by the merchant appraisers. The appraisement was made by both upon samples drawn out by the examiner of sugars, liquors, and cigars in the appraisers' department. His duties, as he stated, were to sample goods, and carry the samples to the office of the local appraisers. He is called the sampler, holding no commission, but usually selected by the local appraisers, and approved by the Secretary of the Treasury. Samples are drawn from one in ten of the packages; but where all the packages bear the same mark, indicating them to be all of the same description, one sample, containing a small quantity of the importation, from one in ten of the packages, is usually regarded as sufficient to enable the appraisers to perform their duties according to law. Such samples, when properly prepared, are put into secure wrappers, marked with the number of the manifest, together with the marks of the packages from which they were selected, and other marks to secure their identification. When thus prepared, the samples are placed in a depository designated for the purpose, and there kept until examined by the local appraisers. In case appeal to merchant appraisers is taken, the samples are kept in the same depository until examined by them. Objection in this Yznaga et al. v. Peaslee. case was made that the samples were not properly drawn, and also that they were not satisfactorily identified with the sugars in question. The jury gave a verdict for the defendant, subject to questions of law that arose at the trial. B. F. Hallett, for plaintiffs. The merchant appraisers cannot delegate any part of their powers and duty of examining one in ten of the packages, or samples of one in ten, to any other person. The importer, on his appeal, is entitled to the judgment of the merchant appraisers, based upon their knowledge of the true value of the merchandise. Bartlett v. Kane, 16 How. 263-272; Rankin et al. v. Hoyt, 4 How. 335; Tappan v. United States, 2 Mas. 406. That the merchant appraisers should give their decision upon the mere exhibition of supposed samples, without it being conclusively known to them that they are genuine and fair samples, is imposing a risk upon the importer, against which the law expressly protects him. 5 Stat. at Large, 563, §§ 16, 17, 21; Greely's Admr. v. Burgess et al., 18 How. 415, 416; 4 Stat. at Large, 410; 3 Stat. at Large, 375, § 16. If the merchandise be such as is bought and sold by sample, the appraisement may be made by samples, due care being taken that they are fairly selected from the packages, designated on the invoice by the collector, and identified as such. Treas. Reg. 1857, 321. The "due care" applies to the appraisers, who must have the knowledge personally. Greely v. Thompson et al., 10 How. 225. The act of the appraisers was in the nature of a judicial act. C. L. Woodbury, for defendant. As to the duty of appraisers. 3 Stat. at Large, 735; 5 Stat. at Large, 563. Sampler. 4 Stat. at Large, 411. And the clerks and all other persons employed in the appraisers' office shall be appointed by the principal appraisers, and the number and compensation fixed by the Secretary of the Treasury. Treas. Reg. 1857, 277. What examination of goods necessary. Sampson et al. v. Peaslee, 20 How. 580; Burgess v. Converse, 2 Cur. 216. The sampler, as clerk, has a substantial duty to perform, and as an officer of the United States his duties are described in his oath. The drawing of samples is a ministe Yznaga et al. v. Peaslee. rial act, not requiring judicial discretion. Barry v. Arnard, 2 P. & D. 646. It is a general principle that a ministerial of ficer cannot appoint a deputy. Broom's Leg. Max. 666; Cooper v. Coates, 5 Man. & G. 98; Midhurst v. Waite, 3 Burr. 1260. Where no discretion or judgment are required. Rex v. Lenthal, 3 Mod. 150. Ministerial act with discretion involved. Parker v. Kett, 1 Salk. 96. There is no imperative statute rendering a personal inspection necessary. Dwar. on Stat. 606611; Cooper v. Coates, 5 Man. & G. 98; Midhurst v. Waite, 3 Burr. 1260. CLIFFORD, J. Mere matters of fact, it must be understood, were settled by the verdict, and the finding of the jury will not be revised by the court in a proceeding like the present. Evidence was introduced by the defendant, showing that the goods constituting the importation were of the class bought and sold by samples, but there was considerable contrariety in the testimony as to the manner in which the samples were usually drawn in such sales. Both parties examined the sampler as to the manner in which the samples in this case were drawn, and he admitted that his recollection of the particular transaction was not very distinct. Taken as a whole, however, his testimony shows, to the satisfaction of the court, that he went to the vessel, or to the place where the vessel was discharged, and drew the samples in the usual and regular way, according to the course of business at the custom-house and the practice of the port. Two samples, at least, were exhibited to the appraisers on the appeal, and, from the marks found upon the wrappers recognized by the sampler, there can be no doubt that they were the identical samples drawn from the sugars in question, and used by the local appraisers. Notice was given by the attorney of the plaintiffs of the time and place designated for the hearing of the appeal, and he testifies that he was present with the merchant appraisers. When the samples were exhibited, he inquired what evidence there was of their identity, or that they had been properly taken, and he states in substance and effect that he received no answer to his inquiries; but he made no objection to an examination by samples, and by his silence acquiesced in the proceedings, re Yznaga et al. v. Peaslee. maining at the public store until he ascertained that the goods had been advanced. Certain propositions of fact involving the identity of the samples and the fairness of their selection are also submitted by the plaintiffs, which, in the view taken of the case, need not be further noticed, as they are sufficiently answered by what has already been remarked. Suffice it to say, without entering more into detail, that all those propositions are substantially negatived by the jury, and in the view of the court were fully disproved by the evidence. With these remarks we come to the examination of the legal questions presented in the case, which are involved in greater difficulty, and will require more careful consideration. Appraisement by samples is conceded to be lawful where the goods imported are such as by commercial usage are bought and sold in that manner in the market, provided due care be taken that the samples are properly and fairly selected from one in ten of the packages as designated on the invoice, and provided the samples when exhibited to the appraisers and examined by them be fully identified as the ones selected for the purpose. But the plaintiffs deny that the appraisers can lawfully delegate their power and duty to another person to select the samples from packages designated on the invoice by the collector, or, in other words, they insist that to allow the samples to be selected by a sampler, as in this case, is imposing upon the importer a risk and uncertainty wholly unauthorized by law. Collectors are required to designate on the invoice at least one package of every invoice, and one package at least of every ten packages of imported goods, wares, and merchandise, and order the same to the public store to be opened, examined, and appraised. 5 Stat. at Large, 565; Treas. Reg. p. 182. Bulky articles, however, are seldom or never sent to the public store; and in respect to such importations the regulations provide that the collector "will direct their examination on the wharf, or other safe and suitable place, to be designated by him for that purpose." Recurring to those regulations, it will be seen that they also provide that, "if the merchandise be such as by commercial usage are bought and sold by samples, or where by such usage the character and |