Baxter v. Maxwell

liable to a duty of 20 per cent." This protest must, I think, be held to be insufficient. It claims that the article invoiced is non-enumerated, and that its true commercial designation is "jute carpeting," while the jury have, as I think I am bound to assume, found it to be "a manufacture of hemp." If they have found that it was "a manufacture of hemp," (as the counsel on both sides have assumed,) it was an enumerated and not a non-enumerated article. Indeed, the parties have, by their counsel, deliberately agreed, that the protests which claim the article to be "a manufacture of hemp," are sufficient; and this agreement necessarily involves the admission, for the purposes of the questions here presented, that it is a manufacture of hemp, and an enumerated and not a non-enumerated article. I therefore hold, that the protest in the case of this entry is not sufficient, and that the plaintiffs cannot recover in respect to any excessive payment made upon it.

The protest in respect to the payments under the entry by the Columbia, is based upon the claim, that the article is a "manufacture of jute;" and, forthe reasons just given, this protest must be held to be insufficient.

The protest in respect to the payments under the remaining three entries are severally based upon the claim that the article entered is "manufactured hemp," which is a non-enumerated article. "A manufacture of hemp " and "manufactured hemp " are different articles, and there can be no pretence for claiming that the articles in question are properly designated as "manufactured hemp," either in common or in commercial parlance. These protests are, therefore, clearly insufficient, and the plaintiff's cannot recover in respect to these entries, unless they are covered by the prospective portion of the two prior protests before mentioned.

Those prior protests were conceded to be good in respect to the particular entries in which they were made; but it was insisted that they were insufficient to cover the subsequent entries. In the only one of the two prospective protests which is at all full and explicit, the plaintiffs, after stating their protest, and the grounds thereof, add: "We pay the amount

Baxter v. Maxwell,

exacted, in order to get possession of the goods, claiming to have the difference refunded, and hereby protest on all future entries of the same goods." In regard to the subsequent cases in which a specific protest was made, placing the objection to the payment of the 30 per cent. upon other and distinct. grounds, I feel no difficulty in deciding that this prospective protest can have no effect. The fact that it has been held that such particular and specific protests were insufficient, because no good objection was distinctly and specifically stated therein, can make no difference. When these specific protests were subsequently made, without any reference to or affirmance of the prior prospective protests, the Collector had a right to assume that all grounds of objection except those distinctly stated in the specific protest were abandoned; at least, in regard to the entry to which such specific protest applied. Therefore, the plaintiffs cannot recover any excess of duty paid on the entries as to which insufficient specific protests were made.

In respect to the cases in which no specific protests were made, and as to which the plaintiffs rely upon the prospective protest before mentioned, it appears that the articles entered in the case in which such prospective protest was made, are described in the entry as 2 packages of " jute rove," 12 packages of "hemp covering," and 13 packages of linens; and the claim in the protest is, "that, under the existing tariff, said goods are liable to a duty of 20 per cent. only, because they are manufactures of hemp." In the entries which are sought to be covered by this protest, the articles are described as 23 bales of hemp carpet covering," 99 bales of linens, 7 bales of "hemp carpeting," 1 bale of "jute rove,” 1 bale of "hemp matting," and 3 bales of "hemp covering." It may well be doubted whether such a sweeping prospective protest ought, under any circumstances, to be held good in respect to entries made at such a port as New York. The entries made there are so numerous, the necessity for the rapid transaction of business so pressing, and the number of persons employed in the Custom-House so great, that such a prospective protest would not be likely to be kept in constant remembrance

Baxter v. Maxwell.

by the Collector, or the subordinates having charge of his accounts, especially as such subordinates must be sometimes changed; and it certainly would not be a strict and full compliance with the Act of February 26th, 1845, (5 U. S. Stat. at Large, 727,) which requires that the party protesting against the payment of duties shall set forth "distinctly and specifically the grounds of objection to the payment thereof." The case of Marriott v. Brune (9 How., 619) was peculiar, and certainly should not be extended. (Warren v. Peaslee, 2 Curtis C. C. R., 231.) Can it be possible that such a prospective protest, annexed to an entry of " linens" only, could be extended to all other importations of articles embraced within that very general and comprehensive term? I think not, and shall hold that this protest, as to the articles subsequently entered as "linens," is insufficient. The term "hemp covering" is a different term from "hemp carpet covering," and "hemp carpeting," used in the subsequent entries, and the Collector was not bound to know that they were used to describe the same article, if such was indeed the fact. The "jute rove" is mentioned in one of the subsequent entries, and the two importations were within three weeks of each other, and no protest was made on any intermediate importation of the article. I am, therefore, inclined to hold, under the decision in Marriott v. Brune, and the decisions in this Circuit, that the protest in regard to the single bale of "jute rove," subsequently entered, is sufficient. In regard to the other subsequent entries, I shall hold the protest insufficient. The two entries next in order of date after the one in which the prospective protest referred to was made, were made without any protest, and, in regard to these, it may be assumed that the party relied on such prospective protest. These two entries describe the article as "hemp carpet covering," "linens," "hemp carpeting," and "jute rove." On each of five successive importations thereafter a separate and specific protest was made, and I think the Collector had a right to infer that the former prospective protest was not further relied upon. Two of those five specific protests were conceded to be sufficient, and the others

Baxter v. Maxwell.

have been adjudged insufficient. Following these five importations and entries with specific protests, four other importations and entries were made without any protest. Under such circumstances, it strikes me that the former prospective protests ought not to be extended to these last importations and entries, even though, in respect to them, no specific protest was made.

The plaintiffs must have judgment according to this opinion, unless the parties stipulate to reargue the matter, upon an amended case, or otherwise, which would seem to be the better course. Indeed, the case omits very many of the facts necessary to the determination of the questions reserved, and they have been decided upon the admissions of counsel made on the argument and papers then furnished, which do not strictly form any part of the case. On the admissions of the counsel, and what I regard as an inaccurate statement of the charge of the Court, I have held, (and I think necessarily,) that the jury found the articles in question to be "a manufacture of hemp "a finding which, in my judgment, was wholly unwarranted by the testimony; and I have consequently ordered judgment for the plaintiffs on the ground that some of the protests are sufficient, whilst I am quite confident that, under a proper finding, they would necessarily be adjudged insufficient. I am, besides, clear, that the charge of the Court is not fully and fairly set forth, and I entertain some doubts whether the verdict of the jury is properly stated in the case. If it was specific and distinct in regard to the character or true designation of the article in controversy, or if they found that it was 66 a manufacture of hemp," or that it was a non enumerated article, known in commerce as "hemp carpeting," this should have been distinctly stated on the face of the case. For these and other reasons, I hope the case will be amended, and the cause again argued.

Lillie v. Redfield.

BENJAMIN H. LILLIE AND OTHERS

vs.

HEMAN J. REDFIELD.

Semble, that the proviso which concludes the 8th section of the tariff Act of July 30th, 1846, ( 9 U. S. Stat. at Large, 43,) was not repealed by the Act of March 3, 1851, (9 Id., 629,) and that such proviso applies to entries made without any increase in the valuation given in the invoice, as well as to those in which an addition has been made to the invoice under the provisions of that section.

Where a fraud was committed on an importer of segars, by the manufacturer of them, by invoicing them erroneously as to their grades, and the duties were deposited on the valuation in the invoice, and the Government appraisers decided that the fraud had been committed, and that the invoice should be reduced accordingly, but the Collector refused to permit the reduction, because the Secretary of the Treasury, after correspondence on the subject, would not authorize it, and exacted duties on the invoice value, and the entries were then adjusted and liquidated under a protest annexed to a copy of the appraisers' report setting forth the error in the grades, the protest referring to the report and the correspondence: Held, that the Collector ought to have allowed the error to be corrected, and that the protest was sufficient, and was made in time.

(Before HALL, J., Southern District of New York, April 21st, 1857.)

THIS was an action against the Collector of the port of New York, to recover back an alleged excess of duties exacted on certain entries of segars, of various brands and different grades, which had been procured under a contract, and were invoiced as of first, second, and third grades. The duties were deposited on the valuations in the invoices. On an examination of the segars, it was discovered, that they had been fraudulently invoiced by the manufacturer, seconds being invoiced as firsts, and thirds as seconds. It was proved that there was no difficulty in determining the different grades. The Government appraisers, after this fact was called to their attention, decided that seconds had been invoiced as firsts, and thirds as