UNITED STATES SUPREME COURT DECISIONS ON-LINE

The plaintiff, as the importer of certain merchandise from England, entered the same at the custom house in New York on 29 March, 1837, as cases containing cotton gloves. He gave a bond for the duties, payable on 27 June, 1838. In 1838, it was discovered that one of the cases, No. 45, contained silk hose, and not cotton gloves. The plaintiff paid the bond to the collector, under protest, and claimed from the Comptroller of the Treasury, to be released from the payment of the duties on case No. 4.5, alleging that as silk hose, they were not liable to duty under the Act of Congress of 14 July, 1832. The plaintiff instituted a suit against the collector to recover back the duties

so paid by him. Held that the suit could not be sustained after so long a time from the entry of the merchandise. Held that silk hose and all manufactures of silk of which silk is the component material of chief value coming from this side of the Cape of Good Hope, except sewing silk, are free of duty.

Even courts of equity will not interfere to assist a party to obtain redress for an injury which he might by ordinary diligence have avoided. And a fortiori, a court of law ought not, when the other party has by his very acts and omissions lost his own proper rights and advantages.

A collector is generally liable in an action to recover back an excess of duties paid to him as collector when the duties have been illegally demanded and a protest of the illegality has been made at the time of payment, or notice given that the party means to contest the claim. Nor is there any doubt that a like action generally lies where the excess of duties has been paid under a mistake of fact and notice thereof has been given to the collector before he has paid over the money to the government.

This suit was originally instituted in the Superior Court of New York, and was afterwards brought before the Circuit Court of the Southern District of New York, by a certiorari. An action of assumpsit was instituted against the collector of the port of New York to recover the sum of one hundred and twenty-seven dollars paid to him by the plaintiff, for the importation of silk hose. The duty was levied at the rate of twenty-five percentum ad valorem, "as hosiery," under the second article of the second section of the Act of Congress of 14 July, 1832, entitled "an act to alter and amend the several acts imposing duties on imports."

Upon the trial it was proved that on 29 March, 1837, the plaintiff made an entry at the custom house in New York of eight cases of cotton gloves, and that the duty was levied on each of the eight packages of twenty-five percentum ad valorem, for which duty, with the duties on other goods, the plaintiff gave a bond for two hundred and ninety-four dollars, payable on 27 June, 1838.

The plaintiff, on making the entry, made the usual affidavit to the truth of the invoice and bill of lading produced by him and that the invoice produced by him was the true invoice of the cost of the goods, and that if any error was discerned in the invoice or cost of the goods, he would immediately make the same known to the collector.

It was proved that in the year 1838, it was discovered that case clubjuris

Page 38 U. S. 264

No. 45, one of the packages in the invoice, did not contain cotton gloves, but actually contained silk hose, and that one hundred and twenty-seven dollars and ninety-two cents were bonded by the plaintiff under the belief that the case contained cotton gloves. On 28 June, 1838, the plaintiff served a protest on the collector against the payment of the bond given to secure the duties. The protest stated that the bond had been given under a clear misapprehension of the nature of the goods, and claimed a deduction from the bond of the amount of the estimated duties on box No. 45, supposing the box to contain cotton gloves.

The plaintiff had previously requested the Comptroller of the Treasury to release him from the payment of the duties, and the Comptroller in reply refused to correct "errors in fact."

On the trial of the cause, the collector introduced and read to the jury, to show the habitually loose manner in which the plaintiff transacted his business, an affidavit made by the plaintiff on 25 April, 1838.

The affidavit stated

"That on 27 March, 1837, he imported in the ship Roscoe, from Liverpool, eight cases and casks of hosiery and gloves, marked B 38 to 45, owned by Barker & Adams, manufacturers of Nottingham, England, and consigned by them to him, the said William B. Bend, for sale; that his clerk not being able to ascertain from the wording of the invoice, which packages contained gloves and which hosiery, and knowing that cotton gloves and cotton hosiery paid the same duty, he entered them all upon arrival at the custom house in the port of New York as cotton gloves; that a duty of twenty-five percentum was charged upon them by the collector of the said port, and that he, the said Bend, gave bonds to the said collector to pay the said duties; that on examination of the goods contained in one of the aforesaid cases marked B 45, he found them to be spun silk hosiery, and not cotton gloves, as entered by him at the custom house, and furthermore that the goods are called, upon the original invoice passed at the custom house, 'spun knots,' a term which is well known in the trade to be applied to hosiery of silk only, and that he verily believes the error of entering the said case, and paying duty arose from the ignorance of his clerk who made the entry; that he, the said Bend, did not upon this, nor does he upon any occasion, examine whether the custom house entries, made by the said clerk, are correct. And the said William B. Bend, further maketh oath that he has never sold any part of the said case, B 45, and that, to the best of his knowledge and belief, nothing has been ever taken from or added to it, but that it is in every respect in the same condition as it was when he received it."

It was also proved that the package No. 45, was never in the custody of the collector nor subjected to the examination of the public appraisers, and that the first intimation the collector had that it contained silk was in March or April, 1838.

It was also proved that the merchandise contained in the package clubjuris

Page 38 U. S. 265

No. 45 was silk hose, made of the tow of silk, a coarse quality of silk, but still silk, sometimes called sponged silk, and that the said merchandise was well known, in commerce, under the denomination of hosiery.

Upon the foregoing evidence, given during the progress of the trial, the following points were presented on the part of the defendant for the opinion of the judges, on each of which the judges were divided in opinion.

1. Whether, assuming that an excess of duties was paid by mistake, under the facts above stated to the collector, on the before mentioned package, No. 45, the plaintiff, under the said facts, is entitled to recover back such excess in a personal action against the collector?

2. Whether the said silk hose was subject to the payment of the duty imposed on "hosiery" by the second clause of the second section of the Act of July 14, 1832, entitled "an act to alter and amend the several acts imposing duties on imports," or whether, as manufactures of silk, not being sewing silk, the goods, wares, and merchandise, contained in said package, No. 45, were exempted from the payment of duty by the fourth section of the Act of March 2, 1833, entitled "an act to modify the act of the fourteenth of July, one thousand eight hundred and thirty-two, and all other acts imposing duties on imports," which declares that all manufactures of silk or of which silk is the component material of chief value, coming from this side of the Cape of Good Hope, except sewing silk, shall be free.

Which said points upon which the disagreement happened are stated under the direction of the judges of the said court at the request of the counsel for the parties in the cause, and ordered to be certified unto the Supreme Court of the United States at the next session.