Rankin et al. v. Hoyt.

Triplett and Neale, and that is explained by the evidence cited, does not conflict with that decided by this court, if the latter be limited to notes discounted by the banks, and the former applies to all other notes payable in the District. In other words, that the law merchant should be modified by the usage only as to demand and notice on notes discounted by the banks. And it would seem, from the decisions above cited, the usage to demand payment the day after the third day of grace had its origin with the banks, and has not been extended, since 1818, to paper not discounted by them. On all other paper, a demand is made on the third day of grace, and the usage is to extend the protest on the day on which the notice is given, stating the demand to have been made on the last day of grace, and the protest to be dated the same day on which the notice is dated." Now a demand and protest on the last day of grace, and a notice on the following day, come strictly within the law merchant. And this was the diligence used in the present case, except the formal date of the protest on the day of the notice. No confusion can, therefore, arise from this general commercial usage, as it conforms to the established law. No inconvenience has arisen, it is supposed, from the bank usage in the District, which has been so long and so firmly established.

No defects in the declaration are perceived, and none have been pointed out to us, which are not cured by the verdict.

Upon the whole, we affirm the judgment of the Circuit Court, with costs.

ALEXANDER RANKIN, CUNNINGHAM SMITH, GEORGE C. C. THURger, AND JOHN MCCALL, PLAINTIFFS in error, v. JesSE HOYT.

Under the act of 1832, the collector had power to direct wool to be appraised, for the purpose of ascertaining whether or not it was entitled to be imported free from duty; the exemption depending upon its value not exceeding eight cents per pound at the place of exportation.

Although it was necessary for the collector to request the appraisers to act, and no such request appears in the record, yet the legal presumption is, that the collector and appraisers did their duty, he requesting their action and they complying. And the collector's subsequent adoption of the proceedings of the appraisers is tantamount to having requested them.

It was the duty of the collector to be guided by such an appraisement, and a subsequent verdict of a jury, finding that the value of the wool was under eight cents per pound, cannot be considered as rendering his acts illegal.

The importer had a right to appeal to another board of appraisers, differently constituted, and if he did not choose to resort to them, he cannot, with much grace, afterwards complain that an over-estimate existed.

THIS case came up, by writ of error, from the Circuit Court of the United States for the Southern District of New York.

It was an action brought by the plaintiffs in error, transacting

Rankin et al. v. Hoyt.

business as copartners, in the city of New York, under the name of Smith, Thurger, & Co., for the return of duties which they alleged to have been illegally exacted, upon several importations of wool, by Hoyt, the collector of New York.

The acts of Congress which bear upon the case are the following.

By the act of the 14th of July, 1832, entitled "An act to alter and amend the several acts imposing duties on imports," by the first clause of the second section (4 Lit. & Brown's ed. 583), it is enacted, "That wool unmanufactured, the value whereof, at the place of exportation, shall not exceed eight cents per pound, shall be imported free of duty; and if any wool so imported shall be fine wool, mixed with dirt or other material, and thus reduced in value to eight cents per pound or under, the appraisers shall appraise said wool at such price as in their opinion it would have cost had it not been so mixed, and a duty thereon shall be charged in conformity with such appraisal; on wool unmanufactured, the value whereof, at the place of exportation, shall exceed eight cents, shall be levied four cents per pound, and forty per centum ad valorem."

"That

By the seventh section of the same act, it is enacted, in all cases where the duty which now is, or hereafter may be, imposed on any goods, wares, or merchandise imported into the United States shall, by law, be regulated by, or be directed to be estimated or levied upon, the value of the square yard, or of any other quantity or parcel thereof; and in all cases where there is or shall be imposed any ad valorem rate of duty on any goods, wares, or merchandise imported into the United States, it shall be the duty of the collector within whose district the same shall be imported or entered to cause the actual value thereof, at the time purchased, and place from which the same shall have been imported into the United States, to be appraised, estimated, and ascertained, and the number of such yards, parcels, or quantities, and such actual value of every of them as the case may require; and it shall, in every such case, be the duty of the appraisers of the United States, and every of them, and every other person who shall act as such appraiser, by all the reasonable ways or means in his or their power, to ascertain, estimate, and appraise the true and actual value, any invoice or affidavit thereto to the contrary notwithstanding, of the said goods, wares, or merchandise, at the time purchased, and place from whence the same shall have been imported into the United States, and the number of such yards, parcels, or quantities, and such actual value of them as the case may require; and all such goods, wares, and merchandise, being manufactures of wool, or whereof wool shall be a component part, which shall be imported into the United States in an unfinished condition, shall, in every such appraisal, be taken, deemed, and estimated by the said

Rankin et al. v. Hoyt.

appraisers, and every of them, and every person who shall act as such appraiser, to have been, at the time purchased, and place from whence the same were imported into the United States, as of great actual value as if the same had been entirely finished Provided, that, in all cases where any goods, wares, or merchandise subject to ad valorem duty, or whereon the duty is or shall be by law regulated by, or be directed to be estimated or levied upon, the value of the square yard, or any other quantity or parcel thereof, shall have been imported into the United States from a country other than that in which the same were manufactured or produced, the appraisers shall value the same at the current value thereof, at the time of purchase, before such last exportation to the United States, in the country where the same may have been originally manufactured or produced."

And by the eighth section it is further enacted, "That it shall be lawful for the appraisers to call before them, and examine upon oath, any owner, importer, consignee, or other person, touching any matter or thing which they may deem material in ascertaining the true value of any merchandise imported, and to require the production on oath to the collector, or to any permanent appraiser, of any letters, accounts, or invoices, in his possession, relating to the same; for which purpose they are hereby authorized to administer oaths; and if any person so called shall fail to attend, or shall decline to answer, or to produce such papers when so required, he shall forfeit and pay to the United States fifty dollars; and if such person be the owner, importer, or consignee, the appraisement which the said appraisers may make of the goods, wares, or merchandise shall be final and conclusive, any act of Congress to the contrary notwithstanding; and any person who shall swear falsely on such examination shall be deemed guilty of perjury, and if he be the owner, importer, or consignee, the merchandise shall be forfeited."

By the third section of the act of the 28th of May, 1830 (4 Lit. & Brown's ed. 409), entitled "An act for the more effectual collection of the impost duties," it is enacted, "That if the owner, importer, or consignee, or agent for any goods appraised shall consider any appraisement made by the appraisers, or other persons designated, too high, he may apply to the collector, in writing, stating the reasons for his opinion, and having made oath that the said appraisement is higher than the actual cost and proper charges on which duty is to be charged, and also that he verily believes it is higher than the current value of the said goods, including said charges at the place of exportation, the collector shall designate one merchant skilled in the value of such goods, and the owner, importer, consignee, or agent may designate another, both of whom shall be citizens of the United States, who, if they cannot agree in an appraisement, may designate an umpire, who shall also be a citizen

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Rankin et al. . Hoyt.

of the United States, and when they, or a majority of them, shall have agreed, they shall report the result to the collector, and if their appraisements shall not agree with that of the United States' appraisers, the collector shall decide between them."

This last enactment was not repealed by the act of 1832, and it was under this last act, as modified by the compromise act of 1833 (4 Lit. & Brown's ed. 629), that the cause came on to be tried at the November term, 1842.

The plaintiffs in error made three several importations of wool in the year 1838, viz.:

The whole of the duties paid upon these several importations were claimed in this one action.

The jury found a special verdict of the following facts, viz. :That the plaintiffs in error were copartners; that Hoyt was collector of the customs; that the three importations above mentioned were made and the original invoices produced; that in each invoice the value of the wool was stated to be seven and one half cents per pound; that the wool was all unmanufactured; and then proceeded as follows.

"And the jurors aforesaid, upon their oaths aforesaid, further find, that upon the importation of the said three several invoices of wool as aforesaid, and upon the several entries thereof, the said wool was examined and appraised by the appraisers of the United States for the collection district of New York, and that the said appraisers did, upon such examination, appraise the said wool, and each and every part and parcel thereof, as of the value, at the places of exportation thereof, of nine cents per pound; which appraisements were, by said appraisers, reported to the collector, and from which said appraisements, or either of them, no appeal was made by the said plaintiffs.

"And the jurors aforesaid, upon their oath aforesaid, further say, that the said appraisers found the said several parcels of wool to be unmixed and of the same quality.

"And the jurors aforesaid, upon their oath aforesaid, further find, that the said collector claimed and insisted that the said wool was subject to the payment of duties to the United States according to the valuation of the appraisers, so reported to him, and refused to deliver the said wool to the plaintiffs except upon payment by them of the duties claimed by the defendant to be due thereon as aforesaid."

The special verdict then went on to find that the plaintiffs in error insisted that the wool was free from and not subject to the payment of any duties to the United States, and protested against

Rankin et al. v. Hoyt.

the right of Hoyt to require payment of any duties; that they paid, under this protest and a notice that they would bring an action to recover it back, the sum of $ 1,909.93, and that the interest thereon, from the time of payment until the 29th of November, 1842, amounted to $ 577-22, the aggregate of the principal and interest being $2,487-15; that the duties charged by Hoyt were calculated and charged upon the value of the wool, as appraised by the appraisers, and that the wool mentioned in the three several invoices, and each and every part and parcel thereof, at the place of exportation, was of the value of seven and one half cents per pound and no more.

Upon this special verdict, the court, on the 23d of December, 1843, ordered a judgment to be entered in favor of Hoyt, the defendant, and a writ of error brought the case up to this court.

The cause was argued by Mr. Dudley Selden for the plaintiffs in error, and Mr. Mason (Attorney-General), for the defendant in error.

Mr. Selden made the following points.

First. Under the facts found by the special verdict, the plaintiffs were entitled to judgment.

Second. The power vested in the officers of the revenue to appraise the value of goods subject to duty does not authorize them to decide whether goods are or are not subject to duty.

Third. If the act of July 14th, 1832, "to amend the several acts imposing duties on imports," has extended the power, under certain circumstances, in regard to the article of unmanufactured wool, the finding in this case shows that those circumstances did not exist, and therefore the appraisement is inoperative.

Fourth. The power given to the appraisers by section second of that act, in relation to unmanufactured wool invoiced at eight cents per pound or less, is confined to the inquiry whether the value thereof has been diminished by being mixed with other material. The seventh section of the act applies alone to goods subject to duty. Fifth. If the appraisers acted without authority, an appeal from their decision was unnecessary.

Mr. Justice WOODBURY delivered the opinion of the court. The right of the plaintiffs to recover in this case, and consequently to have a reversal of the judgment rendered in the Circuit Court, must depend on the legality of the course pursued by the defendant.

No question has been made by counsel, that an action in this particular form cannot be maintained against a collector of the customs, if the course pursued by him was illegal, or that the protest against paying the duties should have been in writing; points which have arisen in similar controversies and led to special legisla