Philip Greely, Junior Plaintiff In Error v. William Thompson and William Henry Forman, Merchants and Under the Style and Firm of Thompson and Forman Aliens and Residents of London, Defendants

• Decision Date: 01 December 1850
• Docket Number: TRADING,CO-PARTNER
• Citation: 10 How. 225,51 U.S. 225,13 L.Ed. 397
• Parties: PHILIP GREELY, JUNIOR, PLAINTIFF IN ERROR, v. WILLIAM THOMPSON AND WILLIAM HENRY FORMAN, MERCHANTS AND UNDER THE STYLE AND FIRM OF THOMPSON AND FORMAN; ALIENS AND RESIDENTS OF LONDON, DEFENDANTS
• Court: U.S. Supreme Court

51 U.S. 225

10 How. 225

13 L.Ed. 397

PHILIP GREELY, JUNIOR, PLAINTIFF IN ERROR, v. WILLIAM THOMPSON AND WILLIAM HENRY FORMAN, MERCHANTS AND CO-PARTNERS, TRADING UNDER THE STYLE AND FIRM OF

THOMPSON AND FORMAN; ALIENS AND RESIDENTS OF

LONDON, DEFENDANTS.

December Term, 1850

THIS case was brought up, by writ of error, from the Circuit Court of the United States for the District of Massachusetts.

Mr. Justice Catron did not sit at the trial in this court, being a stockholder and co-partner of a railroad company having a similar interest.

It was argued in conjunction with the ensuing case of Maxwell v. Griswold et al. Mr. Crittenden (Attorney-General) covered both cases in his opening argument; Mr. Sherman replied in this case, and Mr. McCulloh in Maxwell v. Griswold, when Mr. Crittenden concluded with a reply applicable to both cases. It is difficult, therefore, to separate the arguments, although each case will be stated separately.

It was an action of assumpsit brought by Thompson & Forman, merchants in London, to recover back from Greely, the collector of the port of Boston, an excess of duty and penalty paid to him as collector under protest.

The bill of exceptions stated all the material facts in the case, which were as follows:

Bill of Exceptions.

This was an action of assumpsit brought by the plaintiffs, merchants in London, England, against the defendant, the collector of the port of Boston, to recover back the sum of $6282.37, with interest thereon; said sum being the amount of the additional duty and penalty alleged by the plaintiffs to have been illegally exacted by the defendant, in his capacity aforesaid, upon a cargo of railroad iron imported by the plaintiffs into said port of Boston, in the manner and under the circumstances below stated, and which said sum was paid under protest.

Upon the trial of said cause before the jury, after issue joined, it was shown in evidence that the plaintiffs were manufacturers of railroad iron in Wales, and resided in London, England; that through their agents in Boston, Messrs. William F. Weld & Co., they contracted to sell certain railroad iron to the Fitchburg and Worcester Railroad Company, and to deliver it in Boston; that they made the rails ready for shipment in Newport, Wales, and chartered a vessel for the transportation of said iron to Boston, on the 24th of January, 1849; that the lading of the vessel was completed on the 24th of February following, on which day the bills of lading and invoices were dated, and the vessel sailed.

The invoice, duly made and authenticated, as the act of Congress requires, fixed the value of the iron at five pounds per ton, which was proved to be the fair market price at that date, to wit, on the said 24th day of January; that on the arrival of the vessel in Boston in April of the same year, the iron was entered, and the duties paid according to the invoice; that before the iron was removed, the appraisers at the custom-house, acting under general orders from the Treasury Department, appraised the iron at six pounds per ton, taking the date of the invoice and bill of lading as the time when the value should be fixed, to wit, the 24th of February, 1849, the price having materially advanced during the previous thirty days; that the plaintiffs appealed from this appraisement, and gave notice thereof to the defendant, who, in supposed pursuance of statute provisions in such cases, appointed two merchants, viz., Peter Harvey and Charles Thompson, to make a valuation of the iron according to the provisions of the laws of Congress, as construed by the Secretary of the Treasury, and they took the following oath.

'Custom-House, Boston,

Collector's Office, April 14, 1849.

'We, the undersigned, appointed by the collector of Boston and Charlestown to appraise a lot of railroad iron, imported per Abellino, from Newport, Wales, the said importer having requested a new appraisement thereof, in accordance with the provisions of the sixteenth and seventeenth sections of the act of the 30th of August, 1842, do hereby solemnly swear (or affirm) diligently and faithfully to examine and inspect said lot of railroad iron, and truly to report, to the best of our knowledge and belief, the true value thereof, in accordance with the provisions of the laws of Congress, as construed by the Secretary of the Treasury, in several instructions issued by him, in pursuance of the authority vested in the said Secretary of the

Treasury, by the twenty-third and twenty-fourth sections of said acts of 30th August, 1842, by the act of 30th July, 1846, and the second section of the act of August 10th, 1846.

PETER HARVEY,

CHARLES THOMPSON.

'April 14, 1849, before me,

MARCUS MORTON, Collector.

'A true copy. Attest:

I. O. BARNES, Clerk.'

One of these merchant appraisers, viz., Peter Harvey, doubting whether the invoice was too low, and thinking that it was due to the plaintiffs that they should have time and opportunity to furnish evidence from England, as to the true market value of the iron, reported this to the collector in order that time might be given; that thereupon this merchant was removed by the collector, and another, viz., Flavel Mosely, was appointed by the collector in his place, who took the same oath which is mentioned above as having been taken by Harvey and Thompson; that these merchant appraisers, viz., Thompson and Mosely, thus constituted, valued the iron at five pounds and fifteen shillings per ton, taking, in obedience to instructions from the Treasury Department, the 24th of February as the time when the valuation should be made; that this value so appraised being more than ten per cent. above the invoice value of the iron, the defendant exacted a duty of thirty per cent. on the amount which had been added to the invoice, and, in addition, a penalty of twenty per cent. on the appraised value; that the additional duty and the penalty amounted to $6282.37, which sum, with interest so paid, the plaintiffs sought to recover back in this action; that this sum above mentioned was paid under protest by the plaintiffs; that the custom at the port of Boston was to fix the value of the imports at the date of the invoice or bill of lading; that one of the custom-house appraisers did not inspect or see the iron, as it did not fall in his division (i. e., the two appraisers divide the labor, one taking one class of goods, and the other another class, and it was not the work of that appraiser who did not examine the iron to appraise that class or kind of goods); that only one of the merchants who finally acted as merchant appraisers ever saw the iron; but that the said Mosely testified that the other appraiser, Thompson, and also Harvey, had seen it, and that the kind of iron was admitted, and that it was merchantable, without saying by whom; that it was not necessary for him to see the iron to give it its value, but that he could, when its quality was stated to him, fix its value; and that he could and did in this way fairly appraise the value of such iron.

The merchant appraisers made the following return, viz.:——

'Boston, May 18, 1849.

'SIR,—We have examined the following merchandise imported by William F. Weld & Co., in the Abellino, from Newport, valued in the invoice at 4,720 0s. 10d., but which we are of opinion could not have been purchased at the time and place of exportation for less than 5, 428 0s. 11d.

'In conformity, therefore, with the provisions of the sixteenth and seventeenth sections of the tariff act, approved August 30, 1842, we do appraise the said merchandise as follows, any invoice or affidavit thereto to the contrary notwithstanding:

CHARLES THOMPSON,

FLAVEL MOSELEY, Merchant Appraisers.

'To the COLLECTOR of the District of Boston and Charlestown.

'A true copy. Attest:

ISAAC O. BARNES, Clerk, C. C.'

The regular custom-house appraisers had appraised it at 6 per ton, making, with the commission, the amount of the invoice to be 5,664 1s. 2d.

The defendant offered to introduce a letter of the Secretary of the Treasury to the defendant, to prove that the substitution of the merchant appraiser, upon the delay of the first one to report finally, was done by the orders of the Treasury Department, but the letter was ruled out by the court.

The court instructed the jury,——

1st. That the date of the procurement of the iron in England or Wales, to wit, the 24th of January, was the time at which the appraisers should have fixed the value of the iron, and not the date of invoice and bill of lading, to wit, the 24th of February, when materially different.

2d. That if both appraisers, in each set of appraisers, did not make some personal examination of the iron, their report or decision was not made in conformity to law, and did not justify the penalty.

3d. That the valuation of the merchant appraisers was invalid, because one of the merchants who made the appraisal was wrongfully substituted for another, to wit, the merchant appraiser who was turned out of office, or attempted to be, without any legal authority to do it on the facts of the case.

The jury found that the defendant did promise in manner and form as the plaintiff had declared against him, and assessed damages in the sum of $6681.28.

To which ruling and instructions of the court, given as aforesaid, the said defendant at the trial excepted, and prayed this his bill of exceptions to be signed and sealed by the court.

All which being found true, the same is accordingly signed and sealed.

In testimony whereof I have hereunto set my hand and seal.

LEVI WOODBURY, [SEAL.] Associate Justice of the Supreme Court, U. S.

Upon this exception the case came up to this court.

It was argued by Mr. Crittenden, (Attorney-General,) for the plaintiff in error, and by Mr. Sherman, for the defendants in error.

Mr. Crittenden made the following points:——

I. That the period of exportation from the foreign country is the true date, in...