George Sampson and Lewis Tappan, Doing Business Under the Style and Firm of Sampson Tappan, Plaintiffs In Error v. Charles Peaslee, Collector of Customs

• Decision Date: 01 December 1857
• Citation: 15 L.Ed. 1022,61 U.S. 571,20 How. 571
• Parties: GEORGE R. SAMPSON AND LEWIS W. TAPPAN, DOING BUSINESS UNDER THE STYLE AND FIRM OF SAMPSON & TAPPAN, PLAINTIFFS IN ERROR, v. CHARLES H. PEASLEE, COLLECTOR OF CUSTOMS
• Court: U.S. Supreme Court

61 U.S. 571

20 How. 571

15 L.Ed. 1022

GEORGE R. SAMPSON AND LEWIS W. TAPPAN, DOING BUSINESS

UNDER THE STYLE AND FIRM OF SAMPSON & TAPPAN,

PLAINTIFFS IN ERROR,

v. CHARLES H. PEASLEE, COLLECTOR OF CUSTOMS.

December Term, 1857

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

The facts are stated in the opinion of the court.

It was argued by Mr. Griswold and Mr. Reverdy Johnson for the plaintiffs in error, and by Mr. Black (Attorney General) for the defendant.

Mr. Justice WAYNE delivered the opinion of the court.

This case has been brought to this court by a writ of error from the Circuit Court of the United States for the district of Massachusetts.

It is an action for money had and received. It was sued out by the plaintiffs against the defendant, the collector of customs for the port of Boston, to recover the sum of $14,206.10, with the interest thereon, which the plaintiffs allege was illegally exacted from them by the defendant in his official character, and which was paid by them under protest, as the law permits that to be done.

The aggregate amount sued for is made by several items:

First, $1,624.25, being an amount of duty exacted on an importation of Manilla hemp, over and more than the duty on the value declared, on the entry of it. Second, the sum of $12,067.60, for an additional duty of twenty per cent., exacted under the eighth section of the tariff act of 1846, on the appraised value of one of the invoices of the hemp; and the sum of $524.25 on another invoice of hemp, which the plaintiffs allege to be a portion of the same importation.

The plaintiffs recovered in the Circuit Court the sum of $1,022.75 damages and costs of suit, but being dissatisfied therewith, and with the rulings of the court, have brought this writ of error.

The plaintiffs were engaged in trade with China, Manilla, and the East Indies. They wrote to their agents in Manilla, in March, 1854, to purchase, and ship by the ship Telegraph, four thousand bales of Manilla hemp. The agent bought the hemp, and began to ship it on board of the Telegraph, from lighters, on the 23d of June, 1854, the ship then being in the roadstead, three or four miles from the shore. Each lighter received a permit from the custom-house to be laden and to leave for the ship. The export duty to which the hemp was liable became due and payable as each lighter was laden, and before it could leave for the vessel. But when it is known that the shippers are in good credit, the export duty is allowed to remain unpaid until the whole cargo has been shipped. In this instance, the whole cargo had been shipped by the 29th June. On the 30th it was all on board of the ship and under deck, and a bill of lading was signed for two thousand five hundred and twenty bales of it. On the 1st July, a bill of lading was signed for the residue of the cargo. On the 1st July, the hatches of the ship were caulked down by noonday, and in the afternoon the ship was cleared at the custom-house and ready for sea, but not having the wind, did not sail; nor did she sail on the 2d July, the master of the ship having objected to do so on the Sabbath. On Monday, the 3d, the ship went to sea.

The cargo was bought with Brown Brothers & Co.'s credit, and paid for by bills on London. It is a common practice at Manilla, when the shipment is large, to make of the whole two or more invoices, it being difficult to negotiate a bill for a whole cargo when it is of a large amount, as they frequently are, and as this cargo was, the hemp alone having cost over $80,000. When the cargo is divided into different invoices for the purpose of negotiating the bills by which it has been bought, the invoices for the separate parts are sent with a bill of lading with the bills intended to be negotiated.

The Telegraph's cargo amounted to more than $95,000. In conformity with the practice, and for the purpose just mentioned, it was separated into two invoices. One of them contained two thousand five hundred and twenty bales of hemp, and other merchandise, amounting to $58,772.69; it was dated June 30th, with bill of lading of the same date. The other invoice was for fifteen hundred and twenty-eight bales, and a quantity of loose hemp, amounting to $36,367.03; it was dated June 30th, with bill of lading dated July 1.

On Sunday, July 2d, the day that the captain of the Telegraph refused to sail, the overland mail from England arrived at Manilla; it brought news of the war with Russia. The consequence was, an immediate and material advance in the market price of hemp the next day, July 3d, that being the day when the Telegraph went to sea.

Upon the arrival of the Telegraph at Boston, the plaintiff entered her cargo; a part for consumption, and the residue on bond, each invoice being separately entered at the custom-house. It was appraised by the United States appraisers at $11 per picul, excepting eighty bales of red hemp and two hundred and eighteen and sixty-two hundredths loose piculs, which were appraised at $10.50 per picul. The collector, by the directions of the Secretary of the Treasury, informed the merchant appraiser and the general appraiser that the cargo was to be appraised with reference to what was its value at Manilla on the day that the ship sailed, that day being the period of its exportation to the United States. The act under which that direction was given is, 'That 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 market value or wholesale price thereof at the period of the exportation to the United States, in the principal markets of the country from which the same shall have been imported into the United States, to be appraised, estimated, and ascertained; and to such value or price shall be added all costs and charges, except insurance, and including in every case a charge for commissions at the usual rates, as the true value at the port where the same may be entered, upon which duties shall be assessed.'

It also appears that the appraiser's valuation of the hemp exceeded by ten per centum the value declared on the entry of the 2,520 bales, but it did not exceed by ten per centum the value declared on the entry of the 1,528 bales. Nor did it exceed by ten per centum the value of the aggregate of the two invoices, constituting, as the plaintiffs claimed, the importation of 4,000 bales. An additional duty of 20 per centum was assessed on the appraised value of the 2,520 bales, also on the charges and commissions.

Manilla hemp comes in bales about twenty inches square by three feet in length, pressed hard together, is covered with matting, and is bound closely with ratan bands at short distances apart.

The examination of the hemp for appraisement was made in this wise. Slits were cut in the matting, which covered the bales that were examined, so that different parts of the outside surface of the hemp could be seen, but the ratan bands holding the bales together were not cut. It is said, had they been cut, the appraisers could have examined the inside of the bales. The difficulty of binding the bales together again is the reason given by the appraisers for not cutting the ratan bands. Though slits were cut in the matting, the principal part of it was not removed; the slits disclosed only small parts of the surface of the bales, and no attempt was made to open the hemp for the purpose of ascertaining its quality beneath the exterior. In fact, no more than the surface was seen. However, the merchant appraiser testifies that the examination was such as is usual in buying or selling hemp in bales.

Upon this statement of the case, the plaintiffs' counsel contended that the appraisement was illegal and invalid, and insufficient to negative or displace the value declared on the entry, because the appraisers did not exercise any judgment or discretion in regard to the period of the exportation of the hemp to the United States, but merely obeyed the instructions of the Secretary of the Treasury, to take the date of the sailing of the vessel as the rule to guide them. And the court was asked to instruct the jury accordingly. The court refused to do so, but did instruct them, that if the period so prescribed by the Secretary was the true period of exportation, the objection was untenable; and did further instruct the jury, that the date of the sailing of the vessel from the foreign port for her destination in the United States was the true period of exportation. The plaintiffs excepted to this ruling.

The plaintiffs' counsel then moved the court to instruct the jury, that, upon the facts proved, all the hemp imported was to be taken to be one entire entry at the custom-house, for the purpose of declaring and appraising the value for the levy of duties.

The court refused, and did rule and instruct the jury, 'that each entry was to be deemed as a separate transaction for the purpose of appraisement and the assessment of duties thereon.' To this ruling the plaintiffs excepted.

Then the plaintiffs offered to prove that hemp was of various qualities and values. That it was impossible to determine the qualities of all the packages by such an examination as was testified to by the merchant appraiser. That, for the last three years or more, much of the Manilla hemp imported has been 'muzzled' in the bale, and that it was impossible to tell whether it was so or not, without cutting the bands and removing all of the matting, opening the bale, and examining the inside of it. That the outside of the bale sometimes appears to be and is of good and current quality, while the inside of it may be filled with refuse or inferior. That it is often so tangled or 'muzzled,' as to render the bale from ten to twenty per...