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rected to certify the same to the secretary of the treasury. As the action of the court of claims upon the original claim made under the act of 1885 was not the subject of an appeal to this court, but was simply advisory in its nature, the whole matter being left to the discretion of congress, we think it clear that it was not the intention of that body to permit an appeal from the finding of the court of claims upon the subsidiary question as to the particular person to whom the appropriation already made by congress should be paid.

It was undoubtedly the intention of congress, by the language used in the act of 1894, to refer to the court of claims simply the ascertainment of the proper person to be paid the sum which it had already acknowledged to be due to the representatives of the original sufferers from the spoliation; and it was not intended that the decision which the court of claims might arrive at should be the subject of an appeal to this court. We think congress intended that when such fact had been ascertained by the court of claims, upon evidence sufficient to satisfy that court, the fact was to be certified by the court to the secretary of the treasury, and such certificate was to be final and conclusive.

The case resembles in some aspects that of Ex parte Atocha, 17 Wall. 439. It differs from Vigo's Case (Ex parte U. S., 21 Wall. 648), because the original claim was never referred to the court of claims for such judicial action as should terminate in a judgment, but it was only referred to it by congress for the purpose of receiving what is termed its advisory conclusions, upon which congress would proceed in its discretion.

But, aside from either of the above-cited cases, the nature of the original claim, and the manner in which it has been treated by congress, and the language of the appropriation, as contained in the act of 1894, all clearly lead to the conclusion that congress intended the decision of the court of claims to be final, and that the secretary of the treasury should pay upon receipt of the certificate provided for in the act.

The motion to dismiss the appeal is therefore granted, and the appeal dismissed.

(164 U. S. 46)

UNITED STATES v. HEWECKER. (October 26, 1896.)

No. 547.

CRIMINAL LAW-CERTIFICATES OF DIVISION. Rev. St. $$ 651, 697, in relation to certificates of division of opinion in criminal cases by the judges of the circuit court, having been repealed by Act March 3, 1891, the United States cannot obtain such certificate.

On a Certificate of Division in Opinion between the Judges of the Circuit Court of the United States for the Southern District of New York.

Asst. Atty. Gen. Dickinson, for the United States. Abram J. Rose, for defendant.

Mr. Chief Justice FULLER delivered the opinion of the court.

Hewecker was indicted for the murder of one Miller on January 17, 1892, in the Bay of Havana, off the Island of Cuba, on board an American vessel, within the admiralty and maritime jurisdiction of the United States, and out of the jurisdiction of any particular state, in the circuit court of the United States for the Southern district of New York; that district being the district in which he was found, and into which he was first brought. To the indictment he entered a special plea in the nature of a plea in abatement, to the effect that the indictment was not found until March 10, 1896; that Miller died January 21, 1892, in Cuba, without the United States, and that, under and by virtue of section 1043 of the Revised Statutes of the United States, he could not be prosecuted or tried, that from January 17, 1892, until the date of the finding of the indictment, he had not fled from justice, but had been confined in a prison at Havana, Cuba, upon a charge of assault inflicted in that city; and that, therefore, the offense with which he was charged by the indictment was barred by the statute of limitations. To this plea the United States interposed a demurrer, and argument was had thereon, whereupon the judges of the circuit court (the court being held by a circuit judge and a district judge) announced that they were divided in opinion upon certain questions of law arising on the demurrer; and the points upon which the judges disagreed were, at the request of the United States, certified to this court. The case was submitted on a motion to dismiss.

By the judiciary act of March 3, 1891, it was provided that this court should not have appellate jurisdiction by appeal, by writ of error, or otherwise, over the circuit courts, except according to the provisions of the act. and jurisdiction was specifically given in "cases of conviction for a capital or otherwise infamous crime."

In U. S. v. Rider, 163 U. S. 132, 16 Sup. Ct. 983, we decided that sections 651 and 697 of the Revised Statutes, in relation to certificates of division of opinion in criminal cases, were? repealed, for the reasons given therein. It is* true that in that case the defendants had been found guilty, and that the certificate of division was on a motion for new trial. The general rule was that this court could not, upon a certificate of division of opinion, acquire jurisdiction of questions relating to matters of pure discretion in the circuit court, and, therefore, that a certificate on a motion for new trial would not lic, but, where the questions presented went directly to the merits of the case, it had been held that jurisdiction might be entertained. U. S. v. Rosenburgh, 7 Wall. 580. And accordingly we did not dismiss the certificate because made on a motion for new trial, since the maintenance of the information at all depended on the points certified.

In this case it is contended that the right of

the United States to proceed upon a certificate of division was not brought before us in that case, and that the reasons assigned by us for that decision are not clearly applicable here. But we are unable to arrive at any other conclusion, and see no reason for a different opinion on the general question than there expressed.

By the act of March 3, 1891, appellate jurisdiction on error was given in all criminal cases either to this court, or the circuit court of appeals, in favor of the accused; and, as to them, sections 651 and 697 of the Revised Statutes did not remain in force. And, if the sections were repealed so far as defendants were concerned, we think it follows that this was so as to the United States, and that a certificate which could not be granted upon the request of the defendants could not be granted on the request of the prosecution.

In U. S. v. Sanges, 144 U. S. 310, 12 Sup. Ct. C09, it was held that the act of 1891 did not confer upon the United States the right to sue out a writ of error in any criminal case; and as that right was given in favor of the accused in all such cases, and review by certificate done away with, without any specific saving in favor of the United States, we are of opinion that the reasoning in U. S. v. Rider applies, and that the act furnishes the exclusive rule. The appellate jurisdiction was increased In many respects by that act, and was curtailed in others; and, while enlarged in criminal cases in favor of defendants, it was at the same time circumscribed as to the United States by the specific provisions relating to the particular subject, conceding that under the Revised Statutes the remedy by certificate was open, to be availed of by the United States. Certificate dismissed.

(164 U. S. 54)

SALTONSTALL et al. v. BIRTWELL. (October 26, 1896.) No. 257.

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CUSTOMS DUTIES-EXCESSIVE EXACTIONS-PROTEST Rev. St. § 3011, as amended by Act Feb. 27, 1877, provides that "any person who shall have made payment under protest" in order to obtain possession of his goods may sue to recover back any excess paid, "but no recovery shall be allowed unless a protest and appeal shall have been taken as provided in section 2931." Section 2931 required a notice in writing, specifying the grounds of objection to the amount of duties claimed, to be given within 10 days after the ascertainment and liquidation of the duties, and provided that the action to recover the duties must be brought within 90 days after the decision on appeal by the secretary of the treasury. Held, that a right of action accrued to an importer who paid the duties complained of in order to get possession of his merchandise, if he made his protest within 10 days after the ascertainment and liquidation of the duties, it not being necessary that protest be made before payment. 14 C. C. A. 205, 66 Fed. 969, affirmed. The Chief Justice, Mr. Justice Field, Mr. Justice Harlan, and Mr. Justice Brewer dissenting.

On Writ of Certiorari to the United States Circuit Court of Appeals for the First Circuit.

In October, 1888, Joseph Birtwell brought an action in the circuit court of the United States for the district of Massachusetts against Leverett Saltonstall, collector of the customs for the revenue district of Boston, to recover excess of duties paid under protest on importations. The trial resulted in a judgment for Birtwell, which was brought on error t this court, where the same was reversed, and the case was returned to the circuit court for a new trial. 150 U. S. 417, 14 Sup. Ct. 169.

In June, 1894, the case was again called for trial in the circuit court (63 Fed. 1004), and again resulted in a judgment for Birtwell. The case then went by writ of error to the United States circuit court of appeals for the First circuit, which court affirmed the judg ment of the circuit court. 14 C. C. A. 205, 66 Fed. 969.

In April, 1895, the cause was removed into the supreme court by virtue of a writ of cer tiorari. The return to the writ set forth a stipulation between the counsel for the respective parties that the certified copy of the record of the canse in the circuit court of appeals for the First circuit, on file in the supreme court, should be treated as the return to the writ. That record discloses that at the trial in the circuit court the following proceedings took place:

"It is hereby agreed that trial by jury may be waived in the above-entitled case, and that the same may be tried and determined by the court without the intervention of a jury, as *provided in sections 649 and 700 of the Revised Statutes of the United States.

"J. P. Tucker, "Attorney for Plaintiff. 'Sherman Hoar,

"Attorney for Defendant and United States Attorney.'

"Issue being joined, this cause came on to be heard by the court, the Honorable Le Baron B. Colt, Circuit Judge, sitting.

"On October 2, 1894, at the time of the hearing the following admission on the part of the defendant is filed:

"It is hereby admitted that the 432 pieces of iron and the 4 pieces of iron-the proper classification of which for duty under the tariff act of March 3, 1883, is in question in the above-entitled case-are for the purposes of this case, and for this case alone, "manufactures not specially enumerated or provided for in" said "act, composed wholly of iron." within the meaning of Schedule C (paragraph 216, Treasury Compilation) of said act, and are subject to duty under said paragraph at the rate of forty-five per centum ad valorem.

""This admission as to the classification and nature of said pieces of iron is made to apply to this case, and to this case alone, and the United States and the defendant are not to be estopped or prejudiced thereby in any other case whatsoever.

"Sherman Hoar, United States Attorney.' "At the same time the following motion for finding is filed by defendant:

""The defendant moves the court to rule

that on all the evidence in this case, including the written admission of the defendant now on file in said case, the plaintiff has failed to prove his case, inasmuch as he has failed to show that he paid to the defendant under protest, and for the purpose of obtaining his merchandise, according to the provisions of law in force at the time of his importation, the duties he now seeks to recover.

"And said defendant moves the court to rule that on all the evidence in this case, including the aforesaid admission of the defendant, the plaintiff has failed to prove his case, inasmuch as be has failed to show that he complied with the provisions of law relative to protest in force at the time of his said importation.

"And said defendant moves the court to rule that cn all the evidence in this case, including the aforesaid admission of the defendant, the plaintiff has failed to prove his case. "And the defendant moves also that the court find generally for him.

"Sherman Hoar, United States Attorney.' "Said motion is thereupon overruled by the court, and judgment ordered to be entered for the plaintiff.

"On the 13th day of October the following findings of fact are filed by the court:

"The court finds the following facts:

"(1) That on February 27, 1888, the plaintiff Joseph Birtwell imported, ex steamship Jan Breydel, from a foreign country into the port of Boston, and entered at the customhouse at said port, certain iron, described in the entry as '432 pieces in manufactures of iron for the third floor of the Boston courthouse,' drilled and fitted complete, as required by plan, and painted.

"(2) That on the 14th day of March, 1888, the said plaintiff imported, ex steamship Petre De Connick, from a foreign country into port of Boston, and entered at the customhouse in said Boston, certain iron, described in the entry as 4 riveted girders in iron, complete framing of third floor of Boston courthouse.'

*

"(3) That the defendant, collector of said port of Boston, estimated the duties on both of said importations under the provision of Schedule C of the tariff act of March 3, 1883, which reads as follows: 'Iron or steel beams, girders, joists, angles, channels, car-truck channels, TT, columns and posts, or parts or sections of columns and posts, deck and bulb beams, and building forms, together with all other structural shapes of iron or steel, one and one-fourth of one cent per pound.'

"(4) That on February 29, 1888, subsequently to said estimation of duties, for the purpose of obtaining said 432 pieces of iron, the plaintiff paid duties thereon at the rate exacted by the defendant, amounting to the sum of $2,889.29.

"(5) That on March 14, 1888, subsequently to said estimation of duties, for the purpose of obtaining said 4 pieces of iron, the plaintiff paid duties thereon at the rate exacted by the defendant, amounting to the sum of $166.75.

"(6) That the plaintiff actually obtained said 432 pieces of iron and said 4 pieces of iron at the time when he paid the estimated duties thereon, respectively.

"(7) That on the 4th day of April, 1888, the defendant collector liquidated the duties on said 432 pieces of iron at the same rate and under the same provisions of law at which he had estimated said duties; and on the 10th day of April, 1888, said collector liquidated the duties on said 4 pieces of iron at the same rate, and under the same provisions of law, at which he had estimated said duties.

"(S) That on the 4th day of April, 1838, the plaintiff filed with the defendant collector a protest in writing, setting forth distinctly and specifically the grounds of his objection to the rate of duty at which the duties on said 432 pieces of iron had been liquidated by the defendant collector; and on the 10th day of April, 1888, the plaintiff filed with the defendant collector a protest in writing, setting forth distinctly and specifically the grounds of his objection to the rate of duty assessed by the collector upon said 4 pieces of iron; and in each of said protests the plaintiff claimed that said 432 pieces of iron and said 4 pieces of iron, respectively, were dutiable under that portion of Schedule C of the tariff act of 1883, which is in the words following: 'Manufactures, articles or wares not specially enumerated or provided for in this act, composed wholly or in part of iron, steel,* copper, lead, nickel, pewter, tin, zinc, gold, silver, platinum, or any other metal, and whether partly or wholly manufactured, forty-five per cent. ad valorem'; and these protests were the only written protests filed by the plaintiff with the defendant in this case.

"(9) The plaintiff took an appeal from the decision of the defendant collector on both the said importations to the secretary of the treasury within due time, and, the secretary of the treasury having sustained the defendant collector in both cases, the defendant brought this suit in due time, and filed with the attorney of the defendant a bill of particulars in compli ance with the requirements of section 3012 of the Revised Statutes of the United States.

"(10) I find as a fact that, in connection with his testimony as to making entries of said importations, the plaintiff testified, 'I deposited what they demanded under protest.'

"(11) On the question of the nature and dutiable character of said 432 pieces of iron and said 4 riveted girders of iron, there being on record in said case an admission of the defendant in the following language:

"It is hereby admitted that the 432 pieces of iron and the 4 pieces of iron-the proper classification of which for duty under the tariff act of March 3, 1883, is in question in the above-entitled case-are for the purposes of this case, and for this case alone, "manufactures not specially enumerated or provided for in" said "act, composed wholly of iron," within the meaning of paragraph 216 of said act, and are subject to duty under said paragraph at the rate of forty-five per centum ad valorem.

""This admission as to the classification and nature of said pieces of iron is made to apply to this case, and to this case alone, and the United States and the defendant are not to be estopped or prejudiced thereby in any other case whatsoever.' I find that said 432 pieces of iron and said 4 pieces of iron were dutiable at the rate of forty-five per centum ad valorem, as claimed by the plaintiff.

(12) The value of said 432 pieces of iron was $2.647; the value of said 4 pieces of iron was $216; and the excess of duties paid over duties due is, on said 432 pieces of iron, $1,698.14, and on said 4 pieces of iron, $69,55.

"(13) The court finds that the plaintiff is entitled to recover the sum of $1,767.69 and interest from the date of the writ, and costs.

"Le Baron B. Colt, Circuit Judge. "On the same day the following bill of excep tions is allowed and ordered to be filed:

"This was an action to recover the amount of certain duties alleged to have been illegally ex acted of the plaintiff by the defendant collector of the port of Boston upon certain pieces of iron imported by the plaintiff into said port in the year 1888. The pleadings in the case are hereby referred to, and made a part of this bill of exceptions. The parties, by their attorneys of record, filed with the clerk a stipulation in writing waiving a jury. This case came on to be heard before the Honorable Le Baron B. Colt, circuit judge, at the May term, 1894.

"The court made thirteen special findings of fact, which are hereby referred to, and made a part of this bill of exceptions.

"Joseph Birtwell, the first witness called by the plaintiff, testified that on February 27, 1888, he imported from Antwerp, by the steamship Jan Breydel, into the port of Boston, and entered at the customhouse at said port, 432 pieces of manufactures of iron, and that on the 14th day of March, 1888, he imported from Antwerp, by the steamship Petre De Connick, into said port of Boston, and entered at the customhouse at said port, 4 riveted girders.

"By agreement of counsel, naval-office copies produced by the witness Birtwell of the entries of said two lots of iron, and triplicate copies of the consular invoices thereof offered by him in evidence, were admitted in lieu of the originals, or collector's copies.

"The witness Birtwell then further testified that on the date of importation and entry, in the case of each of said two lots of iron, the defendant collector estimated the duties thereon at one and one-quarter cents per pound, and the third finding of fact of said circuit court shows that said estimation was under that provision of Schedule C of the tariff act of March 3, 1583, which reads as follows: 'Iron or steel beams, girders, joists. angles, channels, cartruck channels, TT, columns and posts, or parts or sections of columns and posts, deck and bulb beams, and building forms, together with all other structural shapes of iron or steel, one and one-fourth of one cent per pound.' He further testified that on February 29, 1888, for the purpose of obtaining said 432 pieces of iron, he

paid the duties estimated thereon by the defendant collector, amounting to the sum of $2,889.29, and that on March 14, 1888, for the purpose of obtaining said four riveted girders, he paid the duties estimated thereon by the defendant, amounting to the sum of $166.75, and that he actually obtained said 432 pieces of iron and said four riveted girders at the times when he paid the estimated duties thereon, respectively.

"From one of the entries referred to above, offered by the plaintiff and received in evidence, it appeared that the defendant collector liquidated the duties on said 432 pieces of iron on the 4th day of April, 1883, at the same rate and under the same provisions of law at which he had estimated said duties; and, from the seventh finding of fact of said circuit court, it appears that on the 10th day of April, 1888, the defendant collector liquidated the duties on said four riveted girders at the same rate and under the same provisions of law at which he had estimated said duties.

"The examination of the witness Birtwell was then suspended, and the plaintiff. called Miss Clara Kenrick. She testified that she had for many years been the protest clerk in the customhouse at the port of Boston, and was said clerk during the year 1888, and that it was her duty to receive and care for protests filed by importers against the rate of duty exacted by the collector of said port upon their importations of merchandise.

"The entries of the plaintiff of the two lots of merchandise in question, referred to above. were then shown to Miss Kenrick, and identified by her as naval-office copies of the entries made by the plaintiff of the two lots of merchandise in question; and the stamps thereon, showing the dates of payment of the estimated duties and of the liquidation, were explained by the witness. corroborating the witness Birtwell, to mean what has been stated above.

"The witness was then asked, 'What is understood by the customhouse clerks as the liquidation of an entry? She testified: 'Well, the duties are figured on the entry, and the entry goes to the naval office for examination, then comes back to another clerk, who puts the stamp on, "Liquidated," and completes the liquidation.'

"Two papers were then handed to the witness by the attorney for the plaintiff, and she was asked if there was anything upon them to show when they were filed at the customhouse. She testified that there were stamps upon each of said papers indicating the dates, respectively, at which they were received at the custombouse. She further testified that the date upon one of the papers, which related to the plaintiff's importation of said 432 pieces of iron by the steamship Jan Breydel, was April 4, 1888, and that the date upon the other paper, which related to the plaintiff's importation of said 4 riveted girders by the steamship Petre De Connick, was April 10, 1888, and she testified that said papers were the

protests in writing filed by the plaintiff with the defendant collector against the rate of duty exacted by him upon said importations. "She was then asked the following question by the counsel for the plaintiff: 'What were your duties in relation to protests filed at that time, so far as the time within which and when they should be filed was concerned? The question was objected to by the counsel for the defendant, but the court overruled the objection and permitted the witness to answer, and the defendant then and there duly excepted.

"The answer of the witness to said question was as follows: "The instructions of the department as to when protests should be received have varied from time to time. At some times we have been instructed to receive them at any time from the date when the entry was made up to the end of ten days after liquidation. At other times we have been instructed to receive them only within ten days after liquidation.'

"The witness was then asked by the counsel for the plaintiff the following question: 'Can you, from your memory, tell which of those practices was in vogue at this time, in 1888?' Her reply was, 'I think the last one.' The witness then testified further that she was the clerk who received protests; that she made certain entries in a book regarding them, giving the place from which the goods were imported, the date when the protests were received, the name of the importer, and the subject of the protest and appeal; the name of the vessel, the date of entry, whether the entry is duty paid or bonded, the date of liquidation, and the date of filing the protest and appeal, and then it was her duty to send the protest to the deputy collector of customs; that the protests were required to be filed in duplicate, and that the original protest and appeal are sent to the deputy collector of customs, and the duplicate protest retained by the witness; and that the original protest and appeal are afterwards sent by the deputy collector to the secretary of the treasury at Washington; that in some cases the deputy collector of customs sent protests to the appraisers, and did not send protests to the secretary of the treasury, unless the report of the appraisers confirmed the decision of the collector; and that the decision of the secretary of the treasury upon protests and appeals is sent to the collector of customs from whom they have been received.

"The witness then identified two papers as the appeals to the secretary of the treasury filed by the plaintiff with the defendant collector in the matter of the decision of the defendant as to the rate of duty chargeable upon defendant's said two importations.

"Up to this point the papers containing the protests and appeals referred to above had not been formally offered in evidence by the plaintiff. Counsel for the plaintiff then formally offered in evidence the two papers identified by the witnesses Birtwell and Kenrick

as the protest filed by the plaintiff with the defendant collector against the rate of duty "exacted by the defendant upon the plaintiff's* said two importations of iron.

*

"The papers were objected to by the attorney for the defendant on the ground that from the testimony in the case, and from the dates stamped upon said papers, it appeared that they had been filed by the plaintiff with the defendant collector too late to be good and valid protests under the law in force at the time of said importations; but the court overruled the objection and admitted the papers, whereupon the defendant then and there duly excepted.

"It is not deemed necessary to set out said two papers verbatim, inasmuch as the only objection to their admission was the objection just stated; it being conceded by the defendant that said papers complied with the provisions of law regarding protests in all respects, except the time at which they were filed with said defendant collector. Miss Kenrick then gave further testimony, which, however, is not material for the purpose of this bill of exceptions.

"At this point the defendant placed on file an admission in writing in the words following:

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"It is hereby admitted that the 432 pieces of iron and the 4 pieces of iron-the proper classification of which for duty under the tariff act of March 3, 1883, is in question in the above-entitled case-are for the purposes of this case, and for this case alone, "manufactures not specially enumerated or provided for in" said "act, composed wholly of iron," within the meaning of Schedule C (paragraph 216, Treasury Compilation) of said act, and are subject to duty under said paragraph at the rate of forty-five per centum ad valorem.

""This admission as to the classification and nature of said pieces of iron is made to apply to this case, and to this case alone, and the United States and the defendant are not to be estopped or prejudiced thereby in any other case whatsoever.'

"The four pieces of iron referred to in said admission are what are referred to herein as four riveted girders.

"On cross-examination the witness Kenrick testified that she had no personal knowledge whatever in regard to the practice at any time* at other ports than the port of Boston in the matter of the time of receiving protests.

"The examination of the witness Birtwell was then resumed, but his further testimony contained nothing material for the purpose of this bill of exceptions.

"Upon the conclusion of the plaintiff's evidence, and after the plaintiff had rested, the counsel for the defendant stated that he had no evidence to offer on behalf of the defendant, and thereupon rested.

"The counsel for the defendant then filed a motion in writing in the words following: ""The defendant moves the court to rule that on all the evidence in this case, includ

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