[578] the defendant made a motion for a new trial, | feasances or wrongs, or negligences or omissions of the decision on which is reported in 22 Blatchf. duty, of the subordinate officers or agents employed in the public service. 39. The motion was denied, on the ground 2. A public officer is not responsible for the misthat the articles in question, as stockings made feasances or positive wrongs, or for the nonfeason frames, were specifically made dutiable by ances or negligences or omissions of duty, of the that name in the Acts of 1861 and 1862, and had ployed by or under him, in the discharge of his ofsubagent or servants or other persons, properly embeen dutiable eo nomine, by different enact- ficial duties. ments, since 1842; and that the general language of the Act of 1867 did not affect the specific description in the Acts of 1861 and 1862. Particular reference was made in the decision to the opinion of this court in Vietor v. Arthur, 104 U. S. 498 [26:633]. The goods in that case Argued May 1, 1888. Decided May 14, 1888. were imported after the enactment of the Re-1States for the Southern District of New vised Statutes, on the 22d of June, 1874, and were stockings, some of them wholly of worsted and others of cotton and worsted, cotton being the material of chief value, and they were intended to be worn by men, women, and children, and were made on frames, and were also knit goods. The collector had exacted upon them a duty at the rate of 90 per cent of 50 cents a pound and 35 per cent ad valorem, as knit goods, under schedule L of section 2504 of the Revised Statutes. The importer claimed that they were dutiable as stockings made on frames, worn by men, women, or children, under schedule M of the same section. Judgment having been entered for the defendant, this court reversed it, on the ground that, as between the descriptions in the two schedules in the same section of the Revised Statutes, the goods must be considered as having been provided for under the desiguation of stockings made on frames, worn by men, women, or children, in schedule M, and as not being liable to the higher duty prescribed by schedule L, because, although schedule L was broad enough to comprehend them, yet, as schedule M covered them by a specific designation, and they had been dutiable as stockings made on frames, eo nomine, since 1842, and by four different enactments, they fell within schedule M. That decision does not apply to the present case, for here the only question is whether the stockings, so far as they have wool in them, being manufactures made in part of wool, and dutiable as such by the Act of 1867, were otherwise provided for in that Act. It is clear that they were not. Inasmuch as the verdict directed covered the stockings which contained wool and cotton, and the judgment is a unit, and the direction of a verdict was wrong as to those goods, the judgment is reversed, and the case is remanded to the Circuit Court with a direction to grant a new trial. [507] WILLIAM H. ROBERTSON, Late Collector of the PORT OF NEW YORK, Piff. in Err., V. EMILIE SICHEL, an Infant, by JOSEPH SICHEL, Her Guardian ad litem. (See 8. C. Reporter's ed. 507-517.) Liability of government for acts of agentsliability of officer for wrongs of his subordinate officers-liability of Collector. 1 The government is not responsible for the mis 3. A collector of customs is not personally rethe custom house department; in order to charge sponsible for the negligence of his subordinates in him in such case, he must have been guilty of personal neglect, misfeasance or wrong. [No. 269.] ERROR to the Circuit Court of the United York, to review a judgment for the plaintiff, in an action against the Collector of Customs to recover damages for the loss of the contents of a trunk, destroyed by fire after its arrival by ship. Reversed. The facts are stated in the opinion. Mr. G. A. Jenks, Solicitor-Gen., for plaintiff in error. Mr. Edward Jacobs, for defendant in er ror: A collector is liable for the illegal detention of property. Hall v. Warren, 2 McLean, 332. The wrongful taker of property, when called upon to surrender it to the rightful owner or pay the value, cannot defend himself from judgment by showing his inability to deliver, through death or destruction. Caldwell v. Fenwick, 2 Dana, 333; Haile v. Hill, 13 Mo. 612; Gibbs v. Bartlett, 2 Watts & S. 34; Austin v. Jones, Gilmer (Va.), 341; Scott v. Hughes, 9 B. Mon. 104; Garrett v. Wood, 3 Kan. 231; Berthold v. Fox, 13 Minn. 501. The unreasonable delay in removal forms another breach of duty. Russell Mfg. Co. v. New Haven Steamboat Co. 50 N. Y. 121. A refusal to charge a proposition which, however true it may be, is, so far as applied to the case, a mere abstraction is not error. Priebe v. Kellogg Bridge Co. 77 N. Y. 597. Where a proposition has been substantially charged, a refusal to charge in the language of counsel is not error. Allen v. Stout, 51 N. Y. 668; Miller v. Barber, 66 N. Y. 558. A prayer for instructions, consisting of a number of propositions presented as a whole, may be refused if any of them should not be given. Johnston v. Jones, 66 U. S. 1 Black, 210 (17: 117); Harvey v. Tyler, 69 U. S. 2 Wall. 328 (17:871); Lincoln v. Claflin, 74 U. S. 7 Wall. 132 (19:106); Beaver v. Taylor, 93 U. S. 46 (23: 797); Worthington v. Mason, 101 U. S. 149 (25: 848); U. S. v. Hough, 103 U. S. 71 (26:305). Mr. Justice Blatchford delivered the opinion of the court: This is an action at law, brought in the City [508] Court of the City of New York, by Emilie Sichel, an infant, by Joseph Sichel, her guardian ad litem, against William H. Robertson, Collector of Customs for the Port and collec tion district of New York, and removed by the defendant into the Circuit Court of the United States for the Southern District of New York. The object of the suit was to recover dam [509] ages for the loss of the contents of a trunk be- that he found other dutiable articles; that he At the close of the plaintiff's case, the defendant asked the court to direct a verdict for him, on the ground that, the action being one for personal negligence, the plaintiff had not brought home to the Collector personally any connection with the trunk at the time it was destroyed, and that, if any negligence was to be imputed to the subordinate officers of the customs, such negligence could not be imputed to the Collector. The court refused to grant the motion, and the defendant excepted. Evidence was then introduced on the part of the defendant tending to show that the inspector on the dock who examined the trunk discovered what, in the exercise of his discretion, he determined to be dutiable articles; that he reported to his superior officer that he thought the trunk contained dutiable articles and that officer told him to see what else he could find; 204 It also appeared in evidence that, under article 431 of the customs regulations, it was the duty of the Collector, on the arrival of any steamer of a regular line from a foreign port, to detail an experienced entry clerk, who, with a similar clerk to be designated by the naval officer and an assistant appraiser or examiner to be detailed by the appraiser, should, together with the inspector on board, examine all the passengers' baggage, place the dutiable value upon the same, and, if dutiable articles were found, appraise the same and assess the duty thereon. It also appeared that all those officers were on the dock on that day. The following regulations were then put in evidence: "The Laws and Regulations for the Government of Officers of Customs under the Superintendence of Surveyors of Ports. 1877." "Article 104. Whenever any trunk or package brought by a passenger as baggage contains articles subject to duty and the value thereof exceeds $500, or if the quantity or variety of the dutiable articles is such that a proper examination, classification, or appraisement thereof cannot be made at the vessel, the trunk or package will be sent to the public store for appraisement." "Article 117. In the absence of the entry clerk or appraiser, dutiable articles taken from passengers' baggage will be sent by the inspector, as soon as possible, to the appraiser's store and the passenger will be furnished by the inspector with the usual baggage certificate,' which will be in the following form: 127 U. S. [511] [512] "Inspector's certificate of goods sent to public | loss may have been the result of negligence on "PORT OF 18On board ship. "I have sent to public store under 'baggage permit' the following articles said to belong to "(Describe the articles.) Inspector." By the government's report in this case the value of the property in Miss Sichel's trunk was alleged to be $100 only, while the plaintiff did not claim the value to be over $400. Peterson, the government inspector, did not make a written report of the case to the government until about two months after the arrival of the steamer. He did this at the request of the surveyor, and it was no part of his duty to make it as requested. The same inspector Peterson had signed and issued the certificate on the baggage declaration. There was an appraiser on the pier in question some time on that day. The trunk in question was the only seizure or detention of passengers' baggage made on that dock on the day in question. The defendant himself, being put upon the stand and duly sworn, testified that he was the Collector of the Port of New York; that he had in the neighborhood of twelve hundred subordinates under him; that, approximately, the average annual importations into the Port of New York, passed through the custom house, were of the value of $500,000,000; that he knew nothing about the trunk imported by Emilie Sichel by The Egypt on January 31, at the time of its importation; that he was not on the dock at the time; that it was no part of his duty to pay any attention to the actual arrival of the passengers' baggage, or passing it through the custom house, or ordering it to the public store, or examining it to see if there were any dutiable goods, or to have anything to do with it; that as a matter of fact he had nothing to do with it; and that the first time his attention was called to the matter of this trunk was long after the fire, some time in September, 1883. The evidence being closed, the defendant moved the court to direct a verdict in his favor upon the same grounds on which the motion was made at the close of the plaintiff's case, that is to say, that there was no evidence in the case to connect the defendant with the destruction of the trunk; that in the case of a public officer, the doctrine of law respondeat superior did not apply; and that, before there could be any recovery from the public officer it must be shown that he was personally responsible himself, and that the negligence was his own act. The court refused to grant this motion, and the defendant excepted. The defendant then requested the court to charge as follows: "1. That a public officer is not responsible for the negligence of his subordinates. "2. That the defendant is liable only for the neglect of some duty devolved upon him personally and not for the neglect of duty of any other person. "5. That the jury cannot find a verdict in favor of the plaintiff if they find that the loss of this trunk was due to the personal negligence or violation of statutes or regulations on the part of the customs officers other than the defendant personally. "6. That the inspector who examined plaintiff's trunk, having found therein what he believed to be dutiable articles, was obliged to turn said trunk over to others of the officers of the customs for appraisement and assessment of duty, and until such appraisement and assessment of duty, and the payment of the duty as assessed, the plaintiff was not entitled to the possession of the trunk. 7. That the defendant is not responsible in this action for the withholding the plaintiff's trunk and its contents. "S. That if the customs officials at the vessel misinterpreted their duty, and did an act which was in law a trespass or conversion, the defendant is not responsible, he not having been present and not having been a party to the wrong interpretation of duty acted on by the customs officers at the vessel. "9. That the defendant is not responsible for the trespasses, conversion, or other faults of his subordinates committed by them even in the line of their duty, unless he was personally a party to the same. "10. That the law, as provided in section 2652 of the Revised Statutes, made it the duty of the customs officers at the vessel by which the plaintiff's trunk was imported, to execute and carry into effect all instructions of the Secretary of the Treasury relative to the execution of the laws. "11. That it appears by the evidence in this case that one of the instructions by the Secretary for the guidance of the officers at the vessel in which the plaintiff's trunk came was & provision that, whenever any trunk or package brought by a passenger as baggage contains articles subject to duty, the value whereof ex ceeds five hundred dollars, or, if the quantity or variety of dutiable articles is such that the proper classification and examination for appraisement thereof cannot be made, the trunk or package will be sent to the public store for appraisement. 12. That this instruction of the Secretary had and has the force of law for the facts in this case. "13. That the instructions devolved upon the customs officials at the vessel a discretion to determine whether the quantity and variety of the dutiable articles was such that the proper classification and examination for appraisement thereof could not be made at the vessel, and, if they determined it could not be, to send the trunk and its contents to the public store for appraisement. "14. That in the exercise of this discretion "15. That the officers at the vessel, and the [513] [514] [515] Collector as their superior, can, if at all, only | 422; U. S. v. Kirkpatrick, 22 U. S. 9 Wheat. The court charged the jury that if one of The jury found a verdict for the plaintiff for $459. The court ordered that a certificate of probable cause be entered, and on the verdict, with costs added, a judgment was entered for the plaintiff for $502.96, to review which the defendant has brought a writ of error. We are of opinion that there was error in the charge of the court, and that the defendant was not liable for the wrong, if any, committed by his subordinates, on the facts of this case. There is nothing in the evidence to connect the defendant personally with any such wrong. No evidence was given that the officers in question were not competent, or were not properly selected for their respective positions. The subordinate who was guilty of the wrong, if any, would undoubtedly be liable personally for the tort, but to permit a recovery against the Collector, on the facts of this case, would be to establish a principle which would paralyze the public service. Competent persons could not be found to fill positions of the kind, if they knew they would be held liable for all the torts and wrongs committed by a large body of subordinates, in the discharge of duties which it would be utterly impossible for the superior officer to discharge in person. The head of a department, or other superior functionary, is not in a different position. A public officer or agent is not responsible for the misfeasances or positive wrongs, or for the nonfeasances, or negligences, or omissions of duty, of the subagents or servants or other persons [516] properly employed by or under him, in the discharge of his official duties. Story, Ag. $319. In Keenan v. Southworth, 110 Mass. 474, it To the same purport are Bailey v. Mayor of The very question here involved came before intemperate book-keeper had been discharged; ** * * * In Mr. Justice Field delivered the opinion of [410] the court: Ryan, since deceased, entered into a contract the plaintiffs should satisfy you, by affirmative | Robert A. Howard, Asst. Atty-Gen., for cavating only." It is conceded that Ryan per- [409] JOB BARNARD, Admr. of ROBERT H. $1.00 per cubic yard. Auditor and contract RYAN, Deceased, Appt., v. DISTRICT OF COLUMBIA. (See S. C. Reporter's ed. 409-411.) Compensation for extra work-written contract. 1. Where, in a contract to do certain work in im- law to be in writing; and the law forbids the allow- 3. The board of public works could not, by a mere A [No. 272.] Argued May 2, 1888. Decided May 14, 1888. |clerk notified;" and Ryan contended that he To this contention there are two answers. acter. In the second place, the Act of Congress of part of the contract with the claimant, nor Judgment affirmed. JOSHUA HENDY, Appt., D. Lamborn v. Dickinson County, 97 U. S. 185 WORKS ET AL. (See S. C. Reporter's ed. 370-376.) 154 (9: 379); Mutual Life Ins. Co. v. Wager, 27 Messrs. A. H. Garland, Atty-Gen., and bination-claim. In a suit for the infringement of letters patent [411] [370] |