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Buchanan v. Howland.

force and effect of those urged from without, no verdict would be obtained, and most certainly none that would alter the present conviction of the Court."

The answer of the defendants, in Goodyear v. Day, not only denied the allegations of the bill, but concluded by praying "a trial by jury of the various issues of fact formed by it." The defendant did not, however, make any special motion for the trial of such issues by a jury; and this, it has been seen, was considered by the Court as a prominent ground for proceeding to the final determination of the cause without a trial at law. In this case, no prayer for a trial by a jury is to be found in the answer, and no special motion for such trial has been made.

The nature of the patent right in this case and the character of the evidence by which it is to be established or overthrown, are such that I am quite satisfied that, upon the most important questions involved, the conclusions of a Judge, based upon repeated examinations and comparisons of depositions carefully taken, reduced to writing, and read and approved by the deponents, after a full cross-examination, would, as a general rule, be more accurate and reliable than the verdict of a jury, which must, of necessity, be based upon the hasty oral examination of witnesses at a circuit, and be made, in the usual manner, after only a brief consultation. It is true that, in regard to the ordinary transactions of life, with which jurors are more familiar, the verdict of a jury is, and ought to be, more relied upon than the opinion of a Judge, formed during the progress of a trial; but, I am not satisfied that an ordinary jury would be the best tribunal to decide upon the questions of fact in this case-questions upon which the very full and yet conflicting testimony of the scientific experts may exercise a very considerable, if not a controlling, influence. This testimony ought to be attentively examined, and the testimony of each witness carefully compared with that of every other, and the general facts of the case; and the whole evidence ought then to be made the subject of deliberate consideration. This can be better done by a judge in vacation than by a jury at term;

Irvin v. Schell.

and, as a general rule, a judge is better qualified than an ordinary jury to investigate and determine disputed questions depending in part on the principles and facts of chemistry and of natural philosophy. The case will, therefore, be examined and disposed of without requiring the intervention of a jury. (The Court then proceeded to dispose of the case upon its merits.)


When imported goods were entered for warehouse, under the Act of March 28th, 1854, (10 U. S. Stat. at Large, 270,) but, before they were removed to the warehouse, the importer applied to the Collector for a permit to land the goods for consumption, and the Collector, under instructions from the Treasury Department, charged him for half a month's storage of the goods, although they had remained all the time on board of the vessel in which they were imported, and the importer paid the amount under protest, and then sued the Collector to recover it back: Held, that the charge was an illegal one, but that the payment of it was voluntary, as the importer might have allowed the goods to go to the warehouse and have withdrawn them from there; and that, therefore, the amount paid could not be recovered back. (Before NELSON, J., Southern District of New York, May 21st, 1863.)

THIS was an action to recover back a sum of money paid, under protest, to the Collector of the port of New York.

Sidney Webster, for the plaintiffs.

Ethan Allen, (Assistant District Attorney,) for the defendant.

NELSON, J. This suit involves the question of the right of the Collector to collect half a month's storage, according to the regulations of the Treasury Department, under the following circumstances: The plaintiffs, in the case of several shipments of goods, in June and July, 1857, from Liverpool to the port of New York, caused warehouse entries to be made at

Irvin v. Schell.

the custom-house, under the Act of Congress of March 28th, 1854, (10 U. S. Stat. at Large, 270,) but, before the goods were removed to the warehouse, they changed their minds and applied to the Collector for permits to land the goods for removal to their own stores, or for consumption; whereupon, the Collector charged them half a month's storage, besides the duties. The storage for all the goods amounted to the sum of $98.26, which was paid under protest.

It is admitted, that no Act of Congress can be found for making this charge against the merchant, under the above state of facts. The charge is wholly an arbitrary one, prescribed by the Secretary of the Treasury, and a fixed sum might as well have been imposed as the half month's storage. "The imposition is sought to be sustained on the idea that, if the goods are entered for warehousing, and if the merchant, before they are landed and removed, applies for a permit to land them for consumption, the vessel may be regarded as being, in the meantime, the warehouse, with the permission of the Treasury Department. But this is hardly plausible, as it involves the absurdity of charging the merchant for the use of his own vessel. Besides, the Government has no interest in the warehousing business, as, according to the Act of 1854, the goods are stored at the risk and expense of the importer. The truth is, that the charge is made simply for the favor granted to the merchant, in permitting him to land the goods for consumption, after he has entered them for warehousing. The Collector might, doubtless, compel the merchant, after having thus entered his goods, to procure them in the usual way, through the warehouse, which would increase considerably the expense. Hence, if the merchant changes his mind. and applies for a permit to land for consumption, this charge is imposed. The charge, as appears from the case, adds nothing to the labor or trouble of the officers of the customs, as is, indeed, obvious, from the usual course of the business.

As I have said already, there is no law for this charge against the merchant, and any other arbitrary sum might as well be imposed; and I have hesitated whether I ought not

Irvin v. Schell.

to put an end to it. I certainly should, were it not for considerations which I will now state. It does not appear, in the case, whether the charge goes to the Government, or is a perquisite to the Collector. But, as it is imposed by a regulation of the Treasury, it is fair to presume that it goes to the Government. This is a suit against the Collector, and the question arises whether the payment of this storage, under the circumstances, was an involuntary payment. If it was not, then the action will not lie. It is true, that the plaintiff's paid under protest. But their own acts led to the charge. They entered their goods for warehousing, and afterwards changed their minds and asked for a permit to land them. The Collector might, probably, under the instructions of the Treasury Department, have refused this, and compelled the warehousing of the goods.

The Secretary of the Treasury, however, says: "If you will pay half a month's storage, I will give you a permit." This is a favor extended for a compensation. I do not agree that public officers can make these bargains; but, if the merchant voluntarily accedes to them, I am inclined to think he cannot turn around and sue the Collector as for an involuntary payment. The merchant was not compelled to accede. He might have procured his goods through the warehouse. There is no difficulty where the merchant makes up his mind, on the arrival of the goods, what he will do with them-warehouse them, or land them for consumption. He is not compelled to enter them for warehousing. The goods may remain on board of his ship until they are entered, and permits to land them are obtained.

Upon the whole, after some difficulty, I have come to the conclusion, for the reasons above stated, that the plaintiffs

cannot recover.

Judgment for defendant.

Potter v. Dixon.




On an application by J., as assignee of a patent granted to A., to the Commissioner of Patents, for a reissue of that patent, the Commissioner, under the 8th section of the Act of July 4th, 1836, (5 U. S. Stat. at Large, 120,) declared an interference between that application and a patent previously issued to S. The decision of the Commissioner was in favor of S., and J., under the 7th section of the same Act, and the 11th section of the Act of March 3d, 1839, (Id. 354,) appealed to the Chief Justice of the District Court of the United States for the District of Columbia. He reversed the decision of the Cominissioner, and ordered the reissue to be granted to J. Before it was granted, the owner of a patent issued to W., prior to the application by J., applied to the Commissioner to declare an interference between that patent and the ap'plication of J. It was declared, and the Commissioner decided in favor of the patent to W. J. then appealed to the Chief Justice, who refused to entertain the appeal, and decided that the second interference was wrongfully declared and should be dissolved, on the ground that no second interference could be declared under the statute, and peremptorily ordered the reissue to be granted to J. It was granted, and the owner of the patent to W. then filed a bill in this Court, under the 16th section of the Act of 1836, against the owners of the reissued patent to J., to have that patent declared void. On an application for a preliminary injunction, to restrain, pending the suit, the sale or use of the reissued patent to J.: Held, that the Chief Justice erred in refusing to entertain the appeal, and that his order dissolving the second interference, and directing the reissue to be granted to J., was a nullity, and that the reissued patent so granted to J. was void.

Under the 8th section of the Act of March 3d, 1837, (5 U. S. Stat. at Large, 193,) the Commissioner has the same power, on a reissue, over the question of granting it, which he possesses in the case of an original application for a patent. Under the 16th section of the Act of 1836, as amended by the 10th section of the Act of 1839, a Circuit Court has power, on a bill filed to declare a patent void, not only to decree a final remedy, but to grant a preliminary injunction to restrain the sale or use of the patent pending the suit.

(Before NELSON J., Southern District of New York, July 2d, 1863.)

THE bill in this case was filed to set aside Letters Patent, (or so much thereof as conflicted with Letters Patent owned by

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