Steegman v. Maxwell. commissions upon invoices on which less than that rate was charged. It is directed, by the 16th section of the Act of August 30th, 1842, (5 U. S. Stat. at Large, 563), that "the appraisers, in making up the dutiable amount of an importation of goods · and merchandise, shall add to the valuation in the entry a charge for commissions at the usual rates." These rates, by the plain implication of the Act, are particulars "to be appraised, estimated and ascertained" in the same manner as the value of the goods imported. The 2d section of the Act of August 10th, 1846, (9 Ū. S. Stat. at Large, 96), authorizes the Secretary of the Treasury to prescribe general and uniform rules to appraisers, for the prevention of fraud or undervaluation. But that provision does not, in our opinion, impart a power to determine the usual rates of commissions prevailing in a foreign country, any more than a power to fix the values of the goods themselves in the foreign market. This direction to the Collector to compute duties on a basis of adding two and one-half per cent. commissions, does not legalize a levy of duties on more than the usual rates of commissions. (Lennig v. Maxwell, ante, p. 125; Greely v. Thompson, 10 How., 225, 234). Judgment for plaintiffs. HENRY STEEGMAN AND OTHERS vs. HUGH MAXWELL. A protest against the payment of 25 per cent. duty charged on thread laces, claiming that the laces are liable to a duty of only 20 per cent., is a sufficient protest, under the Act of February 26th, 1845, (5 U. S. Stat. at Large, 727). Where a person engaged in the importation of thread laces, protested, in proper form, against the exaction of 25 per cent. duty on a particular importation, claiming that it was liable to only 20 per cent. duty, under a specified schedule of the tariff Act then in force, and added, in the same protest, "I mean this protest to apply to all like exactions heretofore paid, and to all future, and shall claim a return thereof: " Held, that that was a sufficient protest, under the said Act of 1845, against the exaction, when made on any future importation by the same party, without the repetition of the protest on each importation. Thread laces, being a manufacture of linen and cotton, first introduced into trade Steegman v. Maxwell. in the United States after the passage of the tariff Act of July 30th, 1846, (9 U. S. Stat. at Large, 42), are liable to a duty of 20 per cent., under Schedule E of that Act, and not to a duty of 25 per cent., as cotton laces, &c.," under Schedule D of that Act. (Before NELSON and BETTS, JJ, Southern District of New York, November 30th, 1855.) THIS was an action against the Collector of the port of New York, to recover back an excess of duties. The jury found a verdict for the plaintiffs, subject to the opinion of the Court on a case. John S. McCulloh, for the plaintiff. J. Prescott Hall, for the defendant. BETTS, J. The plaintiffs, from the year 1849 to the year 1852 inclusive, imported thirty-two invoices of laces from Liverpool into this port, and entered them at the CustomHouse, as subject to a duty of 20 per cent. A duty of 25 per cent. was imposed upon them, and was exacted by the defendant. This action is brought to recover back $1,592 30, the difference of duties so paid. It was proved, that the goods in question were invoiced as thread laces and lawn laces, and were composed of linen and cotton combined in the manufacture. They are a new article in trade, manufactured wholly by machinery, and were first introduced into commerce and trade in the United States in 1847 or 1848, and are known in commerce as thread laces. They have never been known commercially under the denomination of "cotton laces," "cotton insertings" and "cotton trimming laces," which articles were well known in commerce prior to the passage of the tariff Act of 1846, and are composed wholly of cotton. Exception is taken, on the part of the defendant, to the sufficiency of the protests in this case. In most instances, a protest was indorsed on each entry, and was written and signed prior to the payment of the duty exacted. These protests were all, in substance, that the plaintiffs protested against the Steegman v. Maxwell. payment of 25 per cent. duty charged on thread laces (or loom thread laces), claiming that said laces were liable to a duty of only 20 per cent. This, in our judgment, was sufficiently "setting forth distinctly and specifically the grounds of objection to the payment" of the duty demanded, to meet the requirements of the Act of February 26th, 1845, (5 U. S. Stat. at Large, 727). Dutiable articles are scheduled, by the tariff Act of July 30th, 1846, (9 U. S. Stat. at Large, 42), under the rates of duties imposed upon them. A notice to the Collector that a denomination of goods which is justly liable to a duty of only 20 per cent., as "thread laces," is wrongfully placed by him under the schedule of 25 per cent. duties imposed on "cotton laces, cotton insertings, cotton trimming laces, cotton laces and braids," is notice to him, adequately distinct and specific, of the grounds of objection to the payment demanded, to satisfy the provisions of the statute. Some of the protests designate the particular schedule and name under which the importation should be ranked; but we think the more common form of protest before recited is a sufficient compliance with the statute, to authorize the plaintiffs to maintain their action. In August, 1849, the plaintiffs made, upon one of the entries, the following protest in writing: "We hereby protest against being compelled to pay 25 per cent. duty on thread lace and inserting in 165 a 167, because the article is so known commercially, and is provided for under Schedule E of tariff Act of 1846, at a duty of 20 per cent. We mean this protest to apply to all like exactions heretofore paid, and to all future, and shall claim a return thereof." The point raised by this protest was considered in Marriott v. Brune, (9 How., 619, 636). The Circuit Court in Maryland decided, that a prospective notice was a compliance with the Act of Congress, and the Supreme Court affirmed that ruling in respect to the facts then present, but with some hesitation as to adopting it as a general principle. Nothing has since transpired in that Court recalling the decision then made, and, in this Circuit, it has since been regarded and acted upon as lay Vaccari v. Maxwell. ing down the true rule. We perceive no legal reason for calling upon the plaintiffs in this case to reiterate their protest at every entry of their goods, when they are engaged in a trade in a specific description of commodities, and have distinetly apprised the Collector that they shall claim a return of all duties exceeding 20 per cent. ad valorem, exacted on their future importations of those goods. The Collector must be assumed to act against a notice as specific, in such case, as if it were repeated to him toties quoties as often as invoices and entries are presented. Judgment for plaintiffs. JOSEPH VACCARI 28. HUGH MAXWELL. A protest "that no penalty of 20 per cent., under section 8 of the Act of 1846, can be exacted except where the importer has added to his invoice price on entry," is a sufficient protest, under the Act of February 26th, 1845, (5 U. S. Stat. at Large, 727), to raise the question whether the Collector is authorized to impose the penalty appointed by § 8 of the Act of July 30th, 1846, (9 Id., 43), where no addition has been made by the importer to the value of his entry. Under § 8 of said Act of July 30th, 1846, a Collector has authority, upon an appraisement, to assess the additional duty for the undervaluation of purchased goods, which is there prescribed, although the importer has made no addition, in the entry, to the invoice value of the goods. The cases of Goddard v. Maxwell, (ante, p. 131), and Morris v. Maxwell, (ante, p. 143), cited and approved. Where an invoice of lemons, though dated at Genoa, the place of departure of the vessel, stated the value of the lemons free on board at San Remo, which was a port 70 miles from Genoa, and on the track of the vessel to New York, and the chief market of the country for lemons, and added 2 per cent. commissions, and the lemons were taken on board at San Remo, and bills of lading were there signed, and the lemons were entered at New York as embarked from San Remo, and the invoice showed the true price of the lemons at Genoa and San Remo, and the public appraisers, and also appraisers on appeal, raised the invoice value, by adding the freight on the lemons from San Remo to Genoa, and also by increasing the charge for commissions, and, these additions increasing the invoice value by more than 10 per cent., an additional duty or penalty of 20 per cent. was imposed, under § 8 of said Act of July 30th, 1846, Vaccari v. Maxwell. which was paid under a protest "that the expenses of transportation from the place of original shipment to Genoa are not dutiable charges, that the reappraisement is illegal, because the price is made to include charges, and that no penalty can be exacted for addition of charges:" Held, that this protest was, in connection with the invoice, a sufficient protest, under the said Act of February 26th, 1845, to notify the Collector that the valuation by the appraisers of the charges of transportation between Genoa and San Remo was complained of. The invoice and entry in a case may, ordinarily, be regarded as composing part of the protest. Held, also, that the addition by the appraisers of the freight between San Remo and Genoa, was, under the circumstances, illegal. Held, also, that the imposition of the additional duty or penalty of 20 per cent. under the said 8th section, in consequence of the addition of the freight and the increase of the commissions, was illegal. Freight and commissions, although dutiable items, in proper cases, are not, under said 8th section, the subjects of penal duties in themselves, nor, by being added to the value of imports, can they be the means of imposing a penalty on the latter. Held, also, that a clause in the protest, "that the merchant appraiser was not legally sworn in," when considered in connection with the oath annexed to the appraisal, which was before the Collector, and showed that the merchant appraiser was sworn by an official appraiser, was a sufficient protest to the Collector, under the said Act of February 26th, 1845, to raise the question as to the legality of such oath. Held, also, that the reappraisement, which was made under § 17 of the Act of August 30th, 1842, (5 U. S. Stat. at Large, 564), was illegal and void, because the merchant appraiser was sworn by the official appraiser. The rule that the acts of a de facto public officer are valid in regard to third persons, and cannot be questioned collaterally, although he has failed to give a bond or take an oath when required, is restricted to those who hold office under some degree of notoriety, or are in the exercise of continuous official acts, or are in possession of a place which has the character of a public office. (Before NELSON and BETTS, JJ., Southern District of New York, November 30th, 1855). THIS was an action against the Collector of the port of New York, to recover back an excess of duties and a penalty. The jury found a verdict for the plaintiff, subject to the opinion of the Court on a case. John S. McCulloh, for the plaintiff. J. Prescott Hall, for the defendant. |