was claimed to be an error in the liquidation of the duties, either as to principle or as to matter of detail, the court, in its discretion, might continue to give the defendant an opportunity to procure evidence.1 Where suit is brought upon a bond for duties, the defendant may have a continuance, if he, in open court, makes oath that an error in liquidation of the duties demanded has been committed, and that notice has been given to the collector in writing before the term. The errors must be specified, and the United States attorney must be present. This entitles the party to a continuance until the next term, and no longer.2 The remedy of the United States is against the importer, the person who enters the merchandise. That person is regarded by the customs laws as the owner, so that if a consignee enters merchandise in his own name, and gives bond in his own name, and the duties are not paid, the United States has no remedy against the true owner of the goods.3 Besides these remedies for the collection of duties, there are many penalties and forfeitures announced against all persons and vessels who aid or assist in bringing foreign merchandise into the country without payment of duties, which have an important bearing on the collection of duties. § 161. Remedy for Duties Illegally Exacted-Protest-Drawback. If the collector exacts from the importer a larger amount of money for duties than he ought under law to pay, such excess is illegally exacted. It is not important whether the excess results from a wrong classification of the goods, from an erroneous value per yard or other measure of quantity, from an error in any of the items of dutiable value, or from an error in weight or measure. The collector has authority only to impose duties on the true quantity imported at the legal rate. The appraisers, weighers, gaugers and inspectors, only furnish information to the collector, upon which he acts in assessing the tax. If he imposes an amount not authorized by law, from whatever cause, it is illegal, and the amount so illegally exacted may be recovered of the collector. Before there was any act of Congress regulating the matter, the collector's liability was the same as any other collector of taxes, except that he had no precept to protect him. He is both assessor and col 1 United States v. Williams, 4 Dallas, 376; United States v. Phelps, 8 Peters, 700. 2 R. S. U. S. § 959. 3 Knox v. Devens, 5 Mason, 380. Marriott v. Brune, 9 How. 619. In this case duties were assessed on the weight of sugar landed, not on the weight stated in the invoice. lector, and becomes liable for the errors in the assessment. In a former part of the work the rule was laid down that a tax-payer who voluntarily paid his taxes, although they were illegal, could not recover them back from the collector. The same principle applies to the collector of customs. If the duties are paid voluntarily, they cannot be recovered, but if the importer pays under protest, and notifies the collector, he can recover if the duties are lilegal. He is considered as standing in the same position as any other agent who has notice not to pay over to his principal money which he has received, and which it is claimed ought to be refunded. The result of these decisions was that the collectors, when they were notified as to duties paid under protest, retained the duties as to which protest was made until the litigation was ended, and a large amount of the revenue was thus tied up by litigation in the hands of the collectors. To obviate this evil the act of 1839 was passed, requiring collectors to pay moneys received for unascertained duties, or duties paid under protest, into the treasury to the credit of the treasurer, but authorizing the secretary of the treasury, when it was shown that more money had been paid to the collector than was required by law, to draw a warrant on the treasurer in favor of the person so paying. This act was construed by the courts in such a manner that it took away from the importer the right to sue the collector. Heretofore the only protection the collector had was in his right of retainer, which this act took away and made him a mere conduit to pass the duties to the treasury. Soon after this decision of the Supreme Court, Congress revived the right of action against the collector, on the condition that there should be a protest in writing signed by the claimant, at or before the payment of the duties, setting forth distinctly and specifically the grounds of objection to the payment thereof; but this act did not repeal the act of 1839, directing the duties to be paid into the treasury notwithstanding protest.5 The collector is not only liable to action for duties illegally exacted, but if judgment be obtained against him, execution issues. against him personally, on the ground that he, having exceeded his authority, is liable in the same manner as any other trespasser. This liability is not changed by the fact that he is compelled to pay all the money he receives into the treasury. His remedy is in the provision 1 Ante, pp. 266-268, 442. 2 Elliot v. Swartwout, 10 Peters, 137; Bend v. Hoyt, 13 Peters, 263. 35 Stat. U. S. p. 348. 4 Cary v. Curtis, 3 How. 236; Richardson v. Curtis, 3 Blatch. C. C. 385 that allows the secretary to draw a warrant on the treasury for the duties paid illegally.1 The act of 1845 is substantially embodied in § 3011 of the Revised Statutes. The importer who pays under protest in order to get possession of the merchandise imported, is entitled to sue on making protest in the manner indicated. The payment under the statute, as at common law, must be a payment which was not voluntary, but made to get possession of his goods. Where an importer makes ad ditions to his entry to prevent the imposition of the twenty per cent. penalty, which he does under protest, and pay the duties, such payment is not voluntary. Where an importer deposits with the collector money to pay duties when ascertained, and the duties are subsequently ascertained, and then protest is made against payment, it is too late, for then such payment is not compulsory to get possession of the goods. So payment of duties on goods entered for warehousing to prevent suit on the bond for duties is voluntary. Merchandise was entered September 16th. At the appraisal in the latter part of September, the value was raised ten per cent. over the invoice value. On 26th of September, the duties were paid without objection, and permit given to deliver the goods to the importer. On the 10th of November, the excess of duties caused by the appraisal was paid under protest. This excess was not allowed to be recovered, as the payment was not made in order to obtain possession of the merchandise, he already having possession.* In 1857 other conditions were added to the right to sue for duties illegally exacted. By this act the decision of the collector is final and conclusive, unless notice of dissatisfaction was given within ten days, setting forth distinctly the grounds thereof, and within thirty days an appeal must be taken to the Secretary of the Treasury, and suit brought against the collector in thirty days from the decision of the secretary, if the duties have been paid, or in thirty days from the payment if the goods are in bond. This statute is now substantially embodied in the Revised Statutes in § 2931. The difference is as to the time within which suit may be brought after the decision of the Secretary of the Treasury, it being now ninety days, and if the secretary delays his decision, allowing suit to be brought without waiting for his decision. 1 Knoedler v. Schell, 4 Blatch. C. C. 484. 3 Marshall v. Redfield, 4 Blatch. C. C. 379. The steps to be taken by an importer to recover duties illegally exacted are, within ten days after liquidation of the entry,' he must give to the collector notice of his dissatisfaction in writing. This notice must set forth distinctly and specifically the grounds of objection to the decision of the collector. Within thirty days from the same period an appeal must be taken to the Secretary of the Treasury. The decision of the secretary, if against him, is final, unless he brings suit against the collector in ninety days from the secretary's decision, if the duties have been paid; or if they have not been paid, within ninety days after the payment of the duties, such payment being made after the decision of the secretary. If the secretary delays his decision ninety days in cases east of the Rocky Mountains, or five months west thereof, suit may be brought without waiting for his decision. 3 Protest. The initiatory step after the decision of the collector is the notice of dissatisfaction to the collector, as it is called in § 2931, or protest, as it is denominated in § 3011; in the decisions of the courts and in the treasury department it is always spoken of as the protest. The protest must be in writing, and signed by the claimant or his agent. It must state distinctly and specifically the grounds of objection to the duties assessed by the collector. It is sufficient if it be signed by the agent of the importer. If the protest be written on the entry, it is not necessary to repeat in the protest the description of the merchandise. When so written, the protest and entry are one paper. But the signature on different papers not connected is not sufficient. In a case where there was an importation by a firm, there was a signature of one consignee to the affidavit, and of another consignee to the importer's oath on the back of the entry, and the firm name was in the entry. These papers being separate and distinct papers, for distinct purposes, could be considered together so as to bring the protest within the statute as one signed by the importer.5 The protest is a mercantile paper, not a legal instrument, and when its meaning is plain, its phraseology will not be scrupulously criticised by the courts. It is sufficient if the importer indicates distinctly and definitely the cause of his complaint, and that he in 1 R. S. U. S. § 2931; Act of March 31, 1875. Whenever the secretary shall be of opinion that duties have been assessed and collected under an erroneous view of the facts of the case, he may refund such duties, provided protest and appeal shall have been made as required by law. 18 U. S. Stat. ch. 136, p. 469. The secretary rules that the notice must be given in writing. 22 Int. Rev. Rec. p. 194, No. 2275. R. S. U. S. §§ 2931, 3011. 4 Thomson v. Maxwell, 2 Blatch. C. C. 385. 5 Florio v. Peaslee, 2 Curt. C. C. 452. 3 Gray v. Lawrence, 3 Blatch. C. C. 117. tends to make it the foundation of a claim against the government. Nor is it indispensable that the entire notice must be in the protest. The invoice and the entry may be ordinarily regarded as connected with and composing a part of the protest, being the things out of which the protest arises and to which it relates. The following examples will illustrate the principles announced in their application. A protest in these words: "We protest against paying additional duty and penalty on [certain goods, naming them], they being appraised too high. We claim to have [a certain amount, naming it], refunded, being the amount paid for additional duty and penalty," does not cover an objection to the appraisement proceedings, as it does not specify any objection to such proceedings. Any objection fairly covered by the protest, when construed as a mercantile paper, is available when suit is brought, but unless it is within the terms of the protest when so construed it is not valid. Where the invoice value was raised on appraisement, the protest was, "that, under existing laws, said amount is unjustly added, and is not liable to duty, because said invoice and said entry exhibit the true market value of said iron at Liverpool, from whence said iron was imported," the importer was not allowed to show that the invoice price was the actual purchase price. The only point raised by the protest is the correspondence of the invoice value with the value at the place of export at the date of the invoice.4 In a case where the invoice stated the purchase price at a period previous to the shipment, but it did not show the date of purchase, the appraisers took the date of the shipment as the time of purchase, and fixed the purchase price as of that date. The protest was "against illegal and oppressive appraisement which has been made, averring that our invoice states the fair value of the needles when procured in England." This protest was too general in its terms, and it did not indicate the date when the purchase was made, which was the controlling fact in the case. If a protest does in terms embrace an objection to the duty assessed on one article, it will not be extended to others not specified, nor will the terms be extended beyond their plain mean 1 Greeley's Adm'r v. Burgess et al. 18 How. 416; Vaccari v. Maxwell, 3 Blatch. C. C. 374. Thomson v. Maxwell, 2 Blatch. C. C. 385; Pierson v. Lawrence, 2 Blatch. C. C. 495. 3 Stalker v. Maxwell, 3 Blatch. C. C. 138; Focke v. Lawrence, 2 Blatch. C. C. 508; Mason v. Kane, Taney's Dec. 173; Maillard v. Lawrence, 3 Blatch. C. C. 378. Б 4 Cornett v. Lawrence, 2 Blatch. C. C. 512. Crowly v. Maxwell, 3 Blatch. C. C. 401; s. P. Bangs v. Maxwell, 3 Blatch. C. C. 135; Sadler v. Maxwell, 3 Blatch. C. C. 134; Goddard v. Maxwell, 3 Blatch. C. C. 131; Mason v. Kane, Taney's Dec. 173. Pensot v. Maxwell, 4 Blatch. C. C. 43. |