Hermann v. United States
| Decision Date | 31 January 1895 |
| Docket Number | 1,743. |
| Citation | 66 F. 721 |
| Parties | HERMANN et al. v. UNITED STATES. |
| Court | U.S. District Court — Southern District of New York |
Stephen G. Clarke, for importers.
James T. Van Rensselaer, Asst. U.S. Atty., for collector.
It is not disputed by the collector that the sample of the imported goods produced by the importers is a manufacture of cotton. If the case of goods in question was composed, as the importers testified it was, of like goods, the duty imposed by the collector was improperly imposed, unless the importers by reason of their subsequent conduct are estopped from showing what their importation actually was. The only question for the court to determine is whether or not the order which the law required the collector to give to the importers to return the case of goods in question to the public stores was given within the 10 days required by law after the packages designated by the collector and sent to the public stores to be opened and examined had been appraised and reported to him. This date, it is conceded, was January 26, 1893. The 10 days, if the above date is included in the computation, would expire on the 4th day of February and if excluded it would expire on the 5th day of February. The 5th day of February, 1893, was Sunday. There is absolutely no proof of which the court can predicate a finding of fact that the notice mailed by the collector to the importers for a return of the goods in question was served upon the 4th day of February. If the court is permitted to indulge in speculation and guesswork, it is probable that the notice was mailed on that day, but the only evidence of its receipt comes from the importers, and is to the effect that it was received Monday morning, February 6th. There is no analogy between the giving of the actual order which was here necessary and the service of notices by mail in actions at law governed by special statutes. The law required the goods to be returned upon the order of the collector, and it is manifest that until the order was received by the importers they were not required to act and could not act. Was the order given to the importers on February 6th in time, or, in other words, was it within 10 days from January 26, 1893? The answer depends upon whether or not the court can consider Sunday a dies non and include Monday within the 10 days. The analogy to the practice of the law courts cannot be considered in determining...
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