appeal from the collector's assessment, are admissible in evidence to show that the appeal was taken.-Robertson v. Downing, 127 U. S., 607, 613.

In the absence of evidence of the entry of a protest in writing, a verdict for plaintiff in an action to recover excess of duties will be set aside.-Bodart v. Schell, 33 Fed. Rep., 825.

Failure to Appeal From Collector's Decision.-A failure to appeal from a decision of the collector as to the rate or amount of duty does not bar a recovery of the excess of duty, as the act of 1857, providing that the collector's decision shall be final and conclusive "as to the liability of the importation to duty or exemption," "unless an appeal is taken," etc., refers to the liability of the importation to and not to the rate or amount of duty.-Benkard v. Schell, 5 Int. Rev. Rec. (1867), 3; 3 Fed. Cas., 192.

R. S. 2931 makes the decision of the collector respecting "the rate and amount of duties" final and conclusive unless the owner shall, within 10 days after the ascertainment and liquidation, appeal therefrom to the Secretary. The entire question of rate and amount and as to whether it was legally assessed and found must be submitted to and passed upon by the Secretary in the first instance.

The appeal can not be neglected and the courts applied to for relief, and in its absence the decision of the collector is final.-U. S. v. Sowers (36 Leg. Int., 488; 14 Phila., 525; 25 Int. Rev. Rec., 405), 27 Fed. Cas., 1276.

A protest or notice of dissatisfaction to the collector is of no avail unless followed by a valid appeal. Consequently proof of protest without an appeal after liquidation was inadmissible.

The appeal to the Secretary, to be available for the purpose of a review of the decision of the collector, must be taken after such an "ascertainment and liquidation" of the duties as would be final and conclusive if no appeal should be taken. The Secretary can not be called upon until after the final disposition of the matter by the collector. He is not required to act upon the rulings of that officer from time to time, as they are made, while " ascertaining and liquidating," but only after the work of the collector has been fully completed.Watt v. U. S., 15 Blatchf., 29; 29 Fed. Cas., 441.

A vessel from a foreign port with dutiable goods on board arrived at New York and was there sold, under a decree on a libel in admiralty, to the plaintiff. The duties on the goods not being paid or secured, the inspector in charge, under the order of the collector, took the goods to the public stores, under section 56, act of March 2, 1799, and the act of March 2, 1861. The collector exacted from the plaintiff the fees, charges, and expenses connected with the removal of the goods as a condition to granting a clearance for the vessel for an outward voyage. The plaintiff paid the amount under protest, but did not appeal to the Secretary, and then brought suit to recover the amount paid. Held, that although the exaction was not warranted by law the suit could not be maintained because of the failure to appeal to the Secretary.-Shaw v. Grinnell, 9 Blatchf., 471; 21 Fed. Cas., 1190.

Filing of Notice of Dissatisfaction.—The notice of dissatisfaction with the decision of the collector as to the rate and amount of duties on imported goods may be given at any time after the entry of the goods and the collector's original estimate of the amount of duties and before the final ascertainment and liquidation of the duties as stamped upon the entry.-Davies v. Miller, 130 U. S., 284.

Immediate Transportation Entry.-Under R. S. 2931 and 3011, as amended by the act of February 27, 1877, if, at the first port of entry, not being one of the ports at which the statutes authorizes goods to be imported

and shipped through without appraisement, goods imported by sea are entered for warehousing and immediate transportation by the same vessel to another port and are transported accordingly, and the duties thereon are assessed by the collector at the first port and again by the collector at the second port and paid by the importers to the second collector to obtain possession of the goods, no part of the duties can be recovered, unless due protest is made within 10 days after the decision of the first collector as to the rate and amount of duties. Saltonstall v. Russell, 152 U. S., 628.

Importer Confined to Claims in Protest.—Where an importer claims in his protest that his goods are dutiable as nonenumerated manufactured articles under R. S. 2513, but also makes statements and allegations of fact which are calculated to mislead the collector and relying upon which the collector finds the articles to be enumerated by virtue of R. S. 2499, for articles composed of two or more materials, he can not recover by proving facts which, while they tend to show that the articles are nonenumerated, are inconsistent with and in contradiction of the allegations of the protest.

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Where an importer has alleged in his protest that his articles are composed of crude feathers or downs (feathers the component material of chief value)" and dutiable at 25 per cent under R. S. 2499, and Schedule N, act of 1883, as a manufacture of which crude feathers or downs are the component materials of chief value, and has also claimed them to be dutiable at 20 per cent as nonenumerated manufactured articles under R. S. 2513, and it appears upon the trial that down is the component material of chief value, the importer can not recover upon the ground that down, the component material of chief value, is on the free list, and his articles are therefore nonenumerated, as that claim is inconsistent with the allegations of his protest.

A protest is sufficiently distinct and specific, notwithstanding it contains a number of different and inconsistent claims.

An importer can not recover on any ground not distinctly and fully set forth in his protest.-Legg v. Hedden, 37 Fed. Rep., 861.

Action to recover duties paid on merchandise entered as sago flour taxed as starch against a protest that the article was sago flour and free. Held, that the plaintiff must recover, if at all, upon the ground stated in his protest, and therefore he could not recover although upon the trial it appeared that the article was not flour and not dutiable.-Chung Yune v. Kelly, 14 Fed. Rep., 639.

In an action to recover duties the importer can not avail himself of any objections to the actions of the customs officers except those specified in the protest.-Wilson v. Lawrence, 2 Blatchf., 514; 30 Fed. Cas., 138.

In an action to recover duties no ground of objection to the payment of the duties can be taken which was not specifically and distinctly stated in a protest made at the time of the payment of the duties.

Where the protest merely protested against the payment of the additional duties, but stated no ground of objection, held that in an action to recover the plaintiff could not question the validity or accuracy of the appraisement on which the duties were paid.-Durand v. Lawrence, 2 Blatchf., 396; 8 Fed. Cas., 113.

No substantive ground of objection not contained in the protest can be taken at the trial.

A protest having stated only that the invoice value was correct, the plaintiff was not allowed to show that the appraisement was not made in conformity to law.

The fact that the deputy collector dictated the form of the protest does not estop the collector from denying its efficiency for a purpose which does not

appear to have been brought to the notice of the deputy.-Kreisler v. Morton, 1 Curt., 413; 14 Fed. Cas., 863.

Importer Must Prove Claim.-The collector is presumed to have assessed the duty according to law, and the burden is on the plaintiff to show by preponderance of evidence that the collector was wrong.-Luckemeyer v. Magone (C. C.), 38 Fed. Rep., 30.

Irregular Appraisement.-The act of June 30, 1864 (13 Stat., 202), section 14, applies not only where the collector errs in judgment as to the proper rate and amount of duties, but also where there are informalities on the part of the customs officers respecting the appraisal of the merchandise, such as would enable the importer to recover his money back if he had duly protested, appealed, and brought suit.-U. S. v. Chase, 25 Int. Rev. Rec., 161; 25 Fed. Cas., 410.

Nonimportation—Voluntary Payment.—Where a bond was given on a warehouse entry, and it turned out that some of the goods covered by the bond were not imported, and a remission of the duties on those goods was refused by the Treasury Department because the application was not made within a year after the importation, and the importer then paid, under protest, the duties on the missing goods to avoid a suit on the bond, held that he could not

recover.

The payment was voluntary and was not made in order to obtain possession of the goods.-Marshall v. Redfield (4 Blatchf., 221; 40 Hunt Mer. Mag., 195; 2 Weekly Law Gaz., 296), 16 Fed. Cas., 848.

Objections to Appraisers Not Clearly Specified in Protest.-The plaintiff is not authorized to except to the competency of the reappraisers either for the reason that the general appraiser was one of them or that the merchant appraiser was sworn by a customhouse appraiser, because by his protest he did not set forth distinctly and specifically the particulars constituting their disqualification.-Goddard v. Maxwell, 3 Blatchf., 131; 10 Fed. Cas., 510.

General allegations in a protest that the appraisers were prejudiced or incompetent need not be regarded by the collector when the particulars constituting the disqualifications charged are not set forth specifically.—Bangs et al. v. Maxwell, 3 Blatchf., 135; 2 Fed. Cas., 595.

Where on an appraisal both by official appraisers and merchant appraisers the invoice value of goods was raised and duties on the increase were paid under protest, which objected "that the appraisals and reappraisals were not fairly, impartially, or legally made, nor by persons unprejudiced and duly qualified to make them," held that no action to recover could be maintained either on account of irregularity in selecting or qualifying the appraisers or otherwise, because the protest did not set forth distinctly the grounds of objection to the regularity and legality of the appraisements made or wherein the appraisers were prejudiced or not duly qualified.-Christ v. Maxwell, 3 Blatchf., 129; 5 Fed. Cas., 652.

In a suit to recover duties levied on a reappraisement of goods under the act of May 30, 1830, section 2, and paid under protest-one ground of the suit being that the reappraisement was not made by the person authorized by the act to make it—it is necessary that the objection be specified in the protest; otherwise it will not be heard here.-Iasagi et al. v. The Collector, 1 Wall., 375. Payment of Duties Before Protest.-Where duties are paid before protest is made the duties can not be recovered.

And where money is deposited with a collector wherewith to pay the duties when they shall be ascertained, and the duties are afterwards ascertained, and then a protest is made against the payment, the protest is too late, the

money not having been paid compulsorily in order to get possession of the goods. Crocker v. Bedfield, 4 Blatch., 378; 18 How. Pr., 85; 6 Fed. Cas., 835. Period of Valuation.-Where goods were invoiced and entered at their market value at the time of their purchase, and their value had increased between that time and the time of their exportation, and under instructions from the Treasury Department they were appraised at their value at the time of their exportation, and duties were assessed on that valuation and also an additional duty of 50 per cent under section 17, act of August 30, 1842, and were paid under a protest "against the demand of the duties charged upon the merchandise specified in the within entry," which said "the difference between the sum so charged and what ought to have been levied upon the prices mentioned in the invoice we shall claim to recover back, and we also protest against the penalty of 50 per cent in addition to the duties charged, because the invoice was fair and the said last-mentioned sum is levied without the process of law,” held that under such protest it could not be objected that the collector did not under section 17, act of August 30, 1842, order a reappraisement or that one of the examiners was partial and hostile to the importer.

The 50 per cent penalty under the act of August 30, 1842, is an increase of duties, and a protest is necessary to recover it.

As the Treasury instructions were given to the appraisers by the collector to govern them in making the valuation as of the time of exportation, this fact, in connection with the protest, made the protest sufficient to raise the objection that the goods were erroneously valued as of the time of their exportation instead of as of the time of their purchase.-Maillard v. Lawrence, 3 Blatch., 378; 16 Fed. Cas., 501.

Proof that Protest and Appeal were Made.-Under the practice in New York, allegations in the complaint that the plaintiff "duly" protested in writing against the exaction of duty and duly appealed to the Secretary of the Treasury, and that 90 days had not elapsed at the commencement of the suit since the decision of the Secretary, if not denied by the answer are to be taken as true and are sufficient to prevent the defendant from taking the ground at the trial that the protest was premature or that the plaintiff must give proof of an appeal, or of a decision thereon, or of its date.-Robertson v. Perkins, 129 U. S., 233.

Prospective Protest on Future Importations.—Expenses of transportation from Paris to Havre and from Havre to London, en route to New York, and also commissions, were added to the dutiable charges. The protest closed as follows: "You are hereby notified that we desire and intend this protest to apply to all future similar importations made by us." This did not dispense with the necessity of a protest with reference to such subsequent importations. Warren v. Peaslee, 2 Curt., 231; 29 Fed. Cas., 280.

A clause in these words, "and hereby protest on all future entries of the same goods," added at the end of a protest can not have any effect as a prospective protest to aid an insufficient specific protest subsequently made.

Whether such a sweeping prospective protest ought to be held good in respect to entries at such a port as New York under the act of February 26, 1845, query. Where the articles in the entry in which such prospective protest was made were described therein as "linens," "hemp covering," and "jute rove," Held that such prospective protest could not apply to a subsequent entry, without protest, of the same articles as "linens," or as "hemp carpet coverings," or as "hemp carpeting," but that it was sufficient to cover a subsequent entry, without protest, of the same articles as "jute rove," the two importations being

within three weeks of each other and no protest having been made on any intermediate importation of the article.

Where, after such prospective protest was made, five successive importations of the same article were made and entered with specific protests, some of which were sufficient and some insufficient, and afterwards importations on it were made without protests, Held that such prospective protests could not extend to such last importations.

A specific protest which does not refer to or affirm a prior prospective protest must be regarded as evidence of the abandonment of all grounds of objections. Where 30 per cent duties were charged on an article under Schedule C, of the act of 1846, as being "carpeting," and on the payment of the duties a protest was made claiming that the article was nonenumerated and subject to a duty of 20 per cent, and on a trial of a suit to recover the excess the jury found that the article was a "manufacture of hemp" on which, under Schedule E, the duty was 20 per cent, Held that as the jury found that the article was an enumerated one the protest was insufficient.-Baxter et al. v. Maxwell, 4 Blatch., 32; 2 Fed. Cas., 1054.

Where an importer protested in proper form against the exaction of 25 per cent duty on a particular importation of thread laces, claiming that it was liable only to 20 per cent duty under a specified schedule of the tariff act then in force, and added in the same protest: "I mean this protest to apply to all like exactions heretofore paid and to all future, and shall claim a return thereof." Held, that that was a sufficient protest under this act against the exaction when made on any future importation by the same party without the repetition Steegman v. Maxwell, 3 Blatch., 365; 22 Fed. Cas., 1198.

A protest against the payment of 25 per cent duty charged on thread laces, claiming that the laces are liable to a duty of only 20 per cent, is sufficient.Steegman v. Maxwell, 3 Blatchf., 365; 22 Fed. Cas., 1198.

The importer on paying duties January 10, 1871, added to a protest then filed by him with the collector in respect to the exaction of duties thereon these words: "I intend this protest to apply to all future similar importations by me." On January 21, 1871, the importer entered for warehousing like goods, and on June 20, 1871, the collector exacted duties thereon on a withdrawal entry at the same rate as protested against. In a suit to recover back the alleged excess of duties, Held 'hat a prospective protest or continuing protest is not valid under the laws now existing.-Ullman v. Murphy, 11 Blatch., 354; 18 Int. Rev. Rec., 156; 24 Fed. Cas., 506.

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A valid prospective protest against the payment of duties made on a particular importation of merchandise and expressing the intention of the importer that the protest shall apply to all future importations made by him is valid as to subsequent importations of similar merchandise on which the duties are exacted, as respects not only future exactions of like duties from the protesting party by the same collector, but as respects future exactions of like duties from him by a succeeding collector.-Wetter v. Schell, 11 Blatch., 193; 29 Fed. Cas., 845. Prospective Protest-Time of Making Protest.-A protest in the following terms: Having been informed that it is the intention of the Secretary of the Treasury not to make allowance on the payment of duties on such articles as may reach here less in quantity from loss in weight or leakage than at the time of shipment (for instance, sugar, molasses, etc.), and on which a duty ad valorem of the invoice is exacted, we hereby protest against the payment of such entire amount of duty, being of opinion that the law at present in force authorizes an allowance for actual loss in weight or gauge, as shown by the difference in the invoice and the returns of the weighers or gaugers on such 60690°-18-VOL 2-13