Merwin v. Magone

• Decision Date: 02 December 1895
• Citation: 70 F. 776
• Parties: MERWIN v. MAGONE, Collector.
• Court: U.S. Court of Appeals — Second Circuit

70 F. 776

MERWIN v. MAGONE, Collector.

United States Court of Appeals, Second Circuit.

December 2, 1895

Comstock & Brown, for plaintiff in error.

James T. Van Rensselaer, Asst, U.S. Dist. Atty., for defendant in error.

Before WALLACE and SHIPMAN, Circuit Judges

SHIPMAN Circuit Judge.

On March 3, 1887, E. S. Wheeler, doing business under the name of E. S. Wheeler & Co., of New Haven, Conn., imported by the vessel Westernland, and entered at the port of New York, a large quantity of iron wire fence rods. Subsequently the importer became insolvent, and Samuel E. Merwin was appointed trustee for the benefit of his creditors, and became vested with the title of his property. No question exists in the case as to the statutory rate of duty upon this merchandise but the importer duly protested that the number of pounds upon which the duty was imposed was in excess of the actual number of pounds which were imported or which came into the port of New York. The collector's decision was sustained by the secretary of the treasury and by an action at law, in which Mr. Merwin was plaintiff the question duly came before the circuit court for the Southern district of New York and was tried to the jury. The invoice covered 7,382 bundles of rods, divided into 8 lots one of which include 1,787 bundles marked 'Nevins 4 blue.' The bill of lading, the steamer's manifest, and the original warehouse entry contained a similar statement of the number of rods. In the original warehouse entry, the figures 1,787 were changed to 1,570, and the total number in the bundles was changed from 7,382 to 7,166. It does not appear who made the alteration. The naval officer's copy of the entry was not changed. The master of the vessel made oath to his manifest on March 3, 1887. In April, 1887, there was added, at the bottom of the manifest, the master's oath or affidavit that 217 bundles of 'Nevins 4 blue' were 'short shipped.' This affidavit upon the manifest, the inspector's official return, the weigher's official return and the inspector's certificate, when the goods were laden for transportation to New Haven, all which reported that 217 bundles were not found, were offered in evidence by the plaintiff. Neither the master nor any of these officials were examined in court. At the close of the testimony each party moved that the court direct a verdict in his favor. Neither party requested that any question of fact should be submitted to the jury. The court granted the defendant's motion, for the reason which was stated as follows:

'I am prepared to decide this case on the ground that the importer has not shown that he did not get these goods. There is no sworn testimony in the case from the beginning to the end to that effect, and the plaintiff comes into court without his own oath, to say that he did not get the goods. I...