Greely v. Thompson. 10 H. public officer, quasi judicial and misbehaving, as nothing was ruled on that point below, and indeed without holding what might be competent in case of an arbitrator or referee, public or private, becoming corrupted or incapable, as the ruling did not apply to that case, we are satisfied that the allowance of an appeal to merchant appraisers by the importer would be nugatory, or a mockery, if a member of the tribunal can be removed by the collector or secretary whenever his opinion appears not likely to accord with theirs on the matter submitted. He is, as to that, a quasi judge, a "legislative referee." Rankin v. Hoyt, 4 How. 327. And an interference with such a referee for such a cause would conflict with all just notions of judicial independence, or judicial purity, and when done and sanctioned as to a public referee, it might shake confidence abroad as well as at home in the administration of our revenue system, as connected with commercial imports. In all free countries, public sentiment is much shocked by any interference with judicial duties, tending to warp them. And more especially, if so made as to be likely to influence a pending question in favor of those interfering, and actually ending in the removal of a [* 241 ] judicial incumbent * merely for an opinion expressed in the course of the case which was not agreeable. Again, the merchant appraisers here can hardly be considered public officers at all, in the ordinary acceptation of the term. One of them was formerly selected by the importer alone. Neither of them now holds a commission, nor are they selected to discharge generally public duties of a certain character. But they are mere umpires between the permanent appraisers and the importers, when disagreeing as to the value in some particular case; and it is difficult to see how, when third persons are interested in their decision, the other side, whether represented by the collector or secretary, could, without the consent of those third persons, or without some grave public ground beyond a mere difference of opinion, remove an umpire, and thus attempt to change the award about to be made. Though some very culpable cases of removals of public judicial officers occurred in England before her Revolution, during the arbitrary reign of the house of Stuart, and led for security to a change in the tenure of their offices from,the pleasure of the king to good behavior, yet nothing of the kind seems since to be countenanced, here or there, for mere difference of opinion. And the course pursued in the present instance was probably the result of not adverting to the judicial character of a merchant appraiser, or of a misapprehension as to the duty and right to do the act, only for requesting delay to ob Maxwell v. Griswold. 10 H. tain more evidence, rather than arising from any intentional abuse of power. The delay, asked for the benefit of the importers, was also to prevent a penalty; and in such a case, when doubts exist, the respondent is to be favored. 7 Pet. 453; 1 Baldwin, C. C. 317. The removal, made to avoid this delay of further evidence against the forfeiture, was likewise in the case of merchants and manufacturers of apparently high respectability, and without a particle of evidence indicating any intent by them to defraud the government. Almost the whole system of appraisals is founded on the idea, that fraud has been, or is likely to be, practised. And while this court has never been backward in ferreting out and punishing real frauds attempted on the revenue, yet, at the same time, where no dishonesty is pretended, but a disposition appears in the importer to conform to the laws, he is entitled to full legal protection, else fair commerce between us and the rest of the world will be discouraged, and our national character tarnished. The government, too, could not suffer by the delay asked here, as they, in the mean time, would hold the goods, unless the increased duties on the highest appraisal, and the [242] penalty, were paid to them. The judgment below is affirmed. 10 H. 242; 18 H. 413; 20 H. 571; 24 H. 508. HUGH MAXWELL, Plaintiff in Error, v. NATHANIEL L. GRISWOLD, George Griswold, GEORGE W. GRAY, and GEORGE GRISWOLD, Jr. 10 H. 242. The decision in the next preceding case applied to this case. If an importer, on being refused permission to enter his goods at their value as of the time of procurement, and to avoid the penal duty provided for by the 8th section of the tariff act of July 30, 1846, (9 Stats. at Large, 43,) thereupon adds to the valuation in his invoice, under protest, and pays the duty assessed thereon, he may maintain an action to recover back the difference between the duty leviable by law on the original, and the increased valuation. ERROR to the circuit court of the United States for the southern district of New York. The case is stated in the opinion of the court. Crittenden, for the plaintiff. M' Culloh, contrà. WOODBURY, J., delivered the opinion of the court. This case presents two points, similar to what have just [* 254] Maxwell v. Griswold. 10 H. been decided in Greely v. Thompson et al. 10 How. 225. In respect to the first one, which related to the proper time for fixing the value of goods imported from the country of their growth or manufacture, this court there held it was the time of their procurement when not purchased, and the time of their purchase when they had been actually purchased abroad, rather than the time of their exportation or shipment. The goods in this case were valued at the latter time, though they had been previously purchased, and at a lower price. For the reasons assigned in the other case, the instruction given that this time was wrong, must be considered legal. Another point decided in Greely v. Thompson, et al., and which is a ground of exception here, was, that though the money was [*255] collected in obedience to orders from the treasury department, which the collector, so far as regards the department, was bound to follow, yet this did not justify him as to others, or bar a recovery by third persons if not liable in law to pay so high duties. For the reasons there assigned, this exception is likewise one which cannot be sustained. The other points in that case do not arise here, but one does arise which did not exist there, and which we now proceed to examine. The importer had put in his invoice the price actually paid for the goods, with charges, and proposed to enter them at the value thus fixed. But the collector concluded in that event to have them appraised, and the value would then, by instructions and usage at New York, be ascertained as at the time of the shipment, which was considerably higher, and would probably subject the importer, not only to pay more duties, but to suffer a penalty. The importer protested against this, but in order to avoid the penalty, under such a wrong appraisal, adopted the following course. This being a case of purchase of goods abroad, and not procurement, it came clearly within the eighth section of the act of 1846, and therefore the importer, as that act permits, was allowed to make, and did make, an addition to his invoice, so as to escape the penalty, by means of the addition, and the payment of the consequent increased duties. Pamphlet Laws for 1846, 69. This increase of duties, thus obtained, the present action is instituted to recover back, they having been paid under protest and unwillingly. The government, however, insist that this excess of duties was caused and paid voluntarily, and hence, though illegal, cannot be recovered back. If they were paid voluntarily, some precedents would seem to countenance the inability to sustain this suit. Elliot v. Swartwout, 10 Pet. 137. But the gist of the point is, were these increased duties in truth Maxwell v. Griswold. 10 H. paid voluntarily, in the meaning of that term as applicable to the present subject? We have already seen, that the importer did not at first propose to enter his goods of such a value as to justify these increased duties. On the contrary, he insisted on entering them at only the price for which he purchased them, with charges, and thus agreeing with his original invoice, while the collector virtually insisted on having them appraised at their increased value as at the time of the shipment, such being the usage in the custom-house at New York, and such the requirement of the circular of the secretary of the treasury, November 24, 1846. The importer, knowing that this would subject him to a severe penalty, in order [256] to avoid it, felt compelled to add to his invoice the amount which the price had risen between the purchase and the shipment. But this addition and consequent payment of the higher duties were so far from voluntary in him, that he accompanied them with remonstrances against being thus coerced to do the act in order to escape a greater evil, and accompanied the payment with a protest against the legality of the course pursued towards him. Now, it can hardly be meant in this class of cases, that, to make a payment involuntary, it should be by actual violence, or any physical duress. It suffices, if the payment is caused on the one part by an illegal demand, and made on the other part reluctantly and in consequence of that illegality, and without being able to regain possession of his property except by submitting to the payment. See cases cited hereafter. All these requisites existed here. We have already decided, that the demand for such an increased appraisal was illegal. The appraisal itself, as made, was illegal. The raising of the invoice was thus caused by these illegalities in order to escape a greater burden in the penalty. The payment of the increased duties thus caused was wrongfully imposed on the importer, and was submitted to merely as a choice of evils. He was unwilling to pay either the excess of duties or the penalty, and must be considered, therefore, as forced into one or the other by the collector, colore officii, through the invalid and illegal course pursued in having the appraisal made of the value at the wrong period, however well meant may have been the views of the collector. The money was thus obtained by a moral duress, not justified by law, and which was not submitted to by the importer, except to regain possession of his property withheld from him on grounds manifestly wrong. Indeed, it seems sufficient to sustain the action, whether under the act of February 26, 1845, or under principles of the common law, if the duties exacted were not legal, and were demand Gilmer v. Poindexter. 10 H. ed and were paid under protest. 5 Stats. at Large, 727; Clinton v. Strong, 9 Johns. 370; 11 Wheaton; 1 Miller, 536; 1 Bos. & Pul 139; Irving v. Wilson, 4 D. & E. 485-553; Cowp. 69, 805. All these circumstances existed here, and hence the judgment below must be affirmed. 10 H. 225; 20 H. 571. JAMES B. GILMER, Plaintiff in Error, v. GEORGE POINDEXTER. 10 H.257. To maintain a petitory action for land, in the circuit court of the United States for Louisi ana, the plaintiff must have the legal in contradistinction to the equitable title; and if he has only purchased a right to enter the lands, and has taken out a patent in the name of his vendor, he cannot recover on that title. THE case is stated in the opinion of the court. Badger, for the plaintiff. Coxe and Crittenden, contrà. [* 264 ] * DANIEL, J., delivered the opinion of the court. This is a writ of error to a judgment of the circuit court of the United States for the district of Louisiana. The defendant in error instituted a petitory action in the court just mentioned, to recover certain lands in Louisiana in the possession of James B. Gilmer, the plaintiff in error. The petition of Poindexter sets forth, that by an act of congress approved on the 30th day of June, 1834,' entitled "An act granting to General Philemon Thomas a tract of land in consideration of military services, &c.," the said Thomas was authorized to enter, without payment, two sections of land on any of the lands of the United States in Louisiana. That Thomas, on the 30th of January, 1835, sold to the petitioner this right of entry, and authorized him, or his substitute, to make the location in the name of Thomas. That the petitioner afterwards caused said location to be made on two sections of land in Louisiana, north of Red River, one of which (described in parcels) contained 619 acres, and is the land in controversy. 36 100 That after this location, namely, on the 27th of November, 1840, Thomas, by notarial act, transferred to the petitioner all the right, title, &c., which he, Thomas, then had, or thereafter might have, to the two sections so located, and authorized the petitioner to obtain [*265] a patent therefor in his own name. That on the 26th of March, 1841, a patent was issued for the lands to Thomas, 16 Stats. at Large, 592. |