*1 JANUARY-TERM, .1839. Hoyt . B.
Williаm Bend England, the same at entered as the of certain merchandise from importer plaintiff, containing cotton of as cases March, 1837, customhouse in New on 29th York, ,a gloves. gave In June, He of duties, 1838, bond for on 27th 1838. payable gloves. No, cotton it was one of hose,'and discovered that contained silk cases, 45, from the the bond to the under and claimed collector, comp- plaintiff paid protest; - case No. 45, of the duties on trolier of the alleging, to be from the released treasury, ’Congress the act 14th as were net hose, that silk liable they against back the duties recover The' instituted a suit 1832. July, so plaintiff long time so á from the Held, after sustained, him. could not paid suit by which manufactpres Held, hose, of the merchandise. that silk entry coming this side Good material of chief value, Cape is the component sewing are free duty. Hope, except for injury redress an to obtain not interfere to assist a Even Courts of will party Equity a Court of law might, dilig'ence, And, fortiori, have avoided. which by ordinary not, ought lost own and omissions has acts his proper when other by very party rights advantages. to him back excess duties generally paid recover an A collector is liable in an-action to illegality illegally and a demanded, duties been collector, when the protest given means to contest or notice that has been made at the time of party payment, generally the excess of where lies, a like action the claim. Nor there doubt that given to and notice thereof fact, duties has been under a mistake paid government. collector he has over before the money paid Court of the ON a certificate of Circuit division opinion New York. States, for the district United southern of New in the Court Superior suit was This instituted originally Circuit Court before the York, brought and was afterwards action of as- a'certiorari. An York, southern of New by district of New port the collector instituted sumpsit was dollars, York, twenty-seven one hundred recover sum’of of silk hose. The importation him valorem, centum ad .per twenty-five levied was at the fate of the second section article of “as under the second hosiery,” “ act to an alter entitled of 14th act of Congress July, -‘ on imports.” the several acts imposing amend March, 1837, 29th the. the trial was proved, York, New customhouse in made plaintiff levied on each'of cotton and that gloves, cases of eight valorem; for centum ad packages twenty-five eight a bond for gave goods, with the duties on duty, two June, dollars, on the 27th payable and ninety-four hundred . 1838.. .. affidavit the usual entry, making The plaintiff him, and lading produced bill of the invoice and truth of the cost invoice of. was the true invoice him produced invoice error discerned of. or cost of the same known make immеdiately the-goods, to the collector. discovered-that 183S, it was proved, year .It supreme court. J&S4 B. Bend vs. Jesse-Hoyt] Ne. the'invoice, in' packages did not one contain cotton gloves, actually, one hundred and contained-silk bu-t. hose* dollars and ,twenty-seven cents, were ninety-two plain- bonded *2 tiff, belief case contained that On the gloves. under cotton 28th June, 1838, .the Served a plaintiff collector, on the protest against, the of the payment bond given secure the duties. The stated, protest the bond under given had a clear that misap- , prehension of the nature of the goods, claimed deduction from-the bond of the amount of the estimated box No. 45, duties on contain- supposing box cotton gloves. had plaintiff requested the previously, comptroller to release him treasury from the and the payment duties; “ refused to comptroller errors in reply, correct fact.” cаuse, On the trial of the collector introduced and read to show the jury, habitually loose manner in which the plaintiff business, transacted -his affidavit made 25th of 1838. April, “ stated, The affidavit that on March, 1837, the-27th day he Rosco.e, in the imported ship from Liverpool, eight cases and casks hosiery gloves, .45, marked B owned by 3S B.arker Adam§, Nottingham, England, manufacturers consigned by to him,the them Bend, said William B. for sale; that clerk not able-to ascertain from the-wording invoice, which packages contained and which gloves, hosiery, p.nd that cotton knowing gloves and cotton the same paid entered hosiery duty,-he them arrival at customhouse, York, in the as cotton port -New that a gloves; was twenty-five centum charged upon .them the collector of the' port, he, and that the said Bend, collector, bonds to the said gave duties; the said pay that on ex amination contained in goods one cases,' aforesaid 45, he markedrB found to be and not spun hoisery, them cotton customhouse; entered him at gloves,-as by called, and furthermore, the_ that the invoice, are original passed n knots;” a well “spun term in the trade to be of silk applied hosiery only: vdrily be lieves the case, error of said entering arose paying duty, made, his clerk ; he,.the who ignorance said - Bend, this, did nor occasion, no't does upon any examine clerk, the customhouse entries, the- said cor .whether Bend, oath, tect. Arid-thé said William B. further maketli. that he that, never sold B case, 45, said arid the bes.t belief, of his ever knowledge nothing has been taken from or added that it is in in the same every condition respect it was when he it.” received never, It was 45, also that the No. proved, package . custody of nor to the subjected examination of the the first appraisers; intimation collector had public silk, contained in’March or 1838. April, It was also merchandise contained in the proved,, pack- January term, 1839. B. Bend vs. 45, age was silk hose, No. made of the silk, tow of a coarse quality but still silk, sometimes called sponge'd silk; said merchandise well known, in commerce, under the deno-
mination of hosiery. foregoing evidence, given during progress-of the trial, the following points were presented on the part of the de- fendant, for the opinion of the judges, each of which the judges were divided in opinion. 1. Whether, that an assuming' excess of duties was paid by mistake, the facts above stated to the collector, on the before mentioned package, No. titled to recover back under the facts, said is en- excess, ain action personal against the collector ? 2. Whether the said silk hose was subject payment' of the “ imposed the second clause hoisery” by of the second sec- tion of the act 14th, entitled July “an act to alter and amend the several acts imposing on-imports;” or whether, as and not being silk, the sewing manufactures wares, contained in said No'. package, 45, were merchandise, exempted from the fourth section of the act of March 2d, Í833, entitled “an act to the act of the modify fourteenth *3 n July, one thousand hundred.and eight thirty-two, all other acts duties on which declares imposing imports.;”' that all manufactures or which silk, of coming silk is the component material of chief value, from this side of the of Good Cape Hope, except sewing 'silk, shall be free? Which said points, which the upon disagreement happened, are the under the of the -judges Court, stated direction.of said the request of counsel’for the the parties cause, in and ordered to be certified unto the Court of the Supreme States, at the United next session. was Coxe, The case Mr. argued by Raymond for the plain- tiff; Mr. the Grundy, Attorney of the United States, General for the defendant.' Story Mr. Justice delivered the the Court.— opinion This case a us certificate of division of upon comes opinion before of the Circuit-Court the southern district New judges the York! The suit was original to recover back from the and assumpsit deféildant, who is the collector of the district New York, Of port a sum of as duties certain goods, upon money paid they imported the the trial it were liable to ground duty Upon that .not was made by the an March, 1837, entry that on 29th of appeared, York, of New at the customhouse plaintiff, consignee, as 45, 38 cases from to B, of cotton numbered eight rharked- gloves, case, number imported England. Liverpool, was. as cor- examined, on the and was designated passed invoice rect; eight pack- was levied each whereupon Yon. XIII. —Z COURT. SUPREME vs. B. Bend Hoyt] which valorem, as cotton being gloves; centum a'd at 25 per age's due 27th of bond, a which beсame was secured the invoice entry, goods making (cid:127)June, Upon 1838. and sub- taken comnion on such occasions and the oath produced, in the law. It was that proved, prescribed by scribed form that case numbered was discovered year hose; silk cotton but contained gloves, actually did not contain 4§ and under the belief duties, $127.92 that had the plaintiff On 25th of gloves. April, that contained cotton package trea- of the 1838, the addressed a letter comptroller plaintiff from,the duty.; released requesting sury, which the b.e month, re- same 27th of the comptroller replied were com- so, to do whether the fusing ground of cotton should fact, of silk or was' a posed clearly matter of before the removal have been settled the custom- goods from he did not feel ; house the plaintiff’s authorized make to' the uniform and rule of the exception long established revision the' the 26th by permitting Oh department, June, entry. 1838, the addressed letter to plaintiff defendant, inform- duties were on .the ing him and that in payable goods; pay- he should do it ing protest, amount It reserving legal further proved, package number 45 never rights. nor was in the custody subjected to examination first that the col- appraisers-; the public intipation hose, had, that silk in March lector 1838. April, contained 45 was contained in the number package merchandise hose silk, still made of the tow of times called coarse some- quality well silk; and was in commerce under sponged denomination of An affidavit of the read hosiery. plaintiff-was defendant, to show the evidence loose habitually manner transacted his business customhouse; in and with the plaintiff which which, among attributed things, error customhouse to the his own clerk ignorance and not making entry, able to understand, from the.wording invoice, which packages contained gloves,,and hosiery. evidence the following .points were by'the presented defendant for the were opinion judges, each which the judges Whether, divided in 1. opinion. that an excess of assuming *4 duties was by mistake, the facts paid stated, above under the* collector, on the before 45, mentioned the package number plaintiff, facts, under the is said entitled to recover back excess in a per- such sonal'action the collector. 2. Whether the said hose .was the súbject .of payment on the imposed hosiery by second clause the second section of the"act of the 14th of July, 1832, ch. 224, entitled, An act to the alter'and amend several acts “ imposing duties or- imports;” whether, as manufactures from, not being sewing silk, the same were the exempted act of the of duty by the fourth section the of March, 2d that, ch. pf entitled, &c., sjlk, declares manufactures TERM, 1839. B. Bend is the of chief component value, which silk material from coming Hope, sewing silk, side of Good shall Cape.of except he free. the first there is no doubt that question, the collector As in an action to recover back an liable excess of duties paid generally demanded, where the"duties have been illegally to him th'e has been made at illegality time of pay- and a protest claim; then that the means ment, whether he given or notice contest party has over the not. money government paid to. like that a action lies where generally is there any Nor .doubt under a of fact, has been mistake and notice duties paid excess of before to the collector he over has been has given thereof money these propositions fully to the Both government. Swartwout, 10 in the case of Elliot vs. Peters’ and and discussed decided more, there if involved nothing 137; present point R. would be are other But there no substantial ground controversy. case. ingredients present entered at the .custom The goods actually were of cotton and he house, particular description goods; by.a —that him the true that the invoice produced by then then.swore contained a him, entry just- received invoice the faith of goods; account of the and true entry same and. delivered to him oath, actually goods .were whatsoever. No éxamination any. collector without notice until mistake nine or ten months to the collector of given afterwards, when the was no government longer condition a. facts; the real state of the and when, course., to ascertain evidence furnished exclusively upon compelled rely it was the Now, the making before certainly, plaintiff. to have dili exercised due true state of the ascertaining gence examining papers, them under of an facts, solemnity before undertook verify in this negligent particular he was grossly рlain oath. That him, has accrued to loss, his own showing; to his and inattention duty, equally his negligence accrued arises, whether this is maintain then action clear. mistake, innocent circumstances of able, not under ordinary plain culpable negligence circumstances of can be longer when the tiff, and same* government replaced the original at the time of transaction. stood which it situation in we which we give subject, the best consideration can. circumstances,is not action, under main of are of opinion, whole policy were to rule different tainable. If prevail, there in Upon-; of duties broken would be the collection laws or receipt as to the whatsoever no certainty would amount might practised and frauds evasions revenue; grossest with entry, Instead the invoice with perfect impunity. ascer means furnishing just the party, oath of accompanying goods imported, and character the nature, quality, taining pnd thereon; every thing payable the amount *5 COURT. SUPREME Hoyt.] Beridvs. Jesse B.
[William contest, evidence to case of uncertain loose, open, and. in left be The whole guards successive juries. system before- produced laws, for the into the purpose ascertaining revenue introduced nature, and value of would in imported goods, quality, description, than as time, forms, a amount little more as they short vexatious The act of ch. would inefficacious. amendment acts duties, great of the former manifestly lays collection for invoice, of' the goods stress-on at time the entry produced and the as oath of accompanying importer; and best ascertaining nature, quality, truest means of charged values of the and. the basis of the duties to be thefeon; as is the series of from fourth from sections apparent authenticated, to the fifteenth sections. Invoices duly verified are so verified entry; others, deemed sufficient title while not authenticated, declared be deemed to be suspected, as And- liable to be treated same manner invoices. fraudulent are admitted to 23d section of the act when provides, the an official'seal; shall same under his the collector entry' upon invoice, certify shall and no of such goods other evidence value be admitted on the of the owner in Court of United part any States, such seems difficult to except entry. corroboration resist is con- conclusion, this section though language of fined its terms to because the the invoice of the goods, value that, consist- duties were to valorem thereby, be calculated ad yet con- equally tó be deemed ought its professed With ently objects, aqd nature, description quality, clusive as evidence whole policy seem to be events, At .would goods. acts of respecting well the other act, Congress as as of of collection of-the packages a man to enter revenue, permit thus to with- solemn oath, bis one goods draw them tion description, examina- any custody from insist afterwards the contents of the packages; the rate different, and to change thereby all another description totally The in- from duties, public or claim an duties. exemption be suffix a' alone conveniences attendant practice, to authorize crent to it, intended repel presumption Congress and the it; unless there were some in favour of explicit provision strong uniform course 'of the to disallow government' furnishes justify evidence true construction of act does not choice at of the entry, had his the time practice. consignee on. his each invoice, either to or to have the former; rely pack- contents is, He examined. chose the age the latter so far as to government, least longer practicable of' be —-at satisfactory error, certain in its there has results. been, arisen, stated, we have his own already culpablé . negligence; and do Courts of not sit of aid- justice for purpose those who ing redress supposed mischiefs resulting seek for such negligence. Even Courts of will not to assist equity interfere to obtain redress party which he injure ordinary. might by TERM, 1839. B. Bend os. and, not;, a Court of law avoided; fortiori, ought diligence -the has, omissions, acts lost his. by the party very where own rights advantages. proper case has to our cited, No and none has come knowledge,, *6 circumstances; law, actio'n where an has at under been maintained to be for like the where has recovered sought been present; money a mistake of by of it negligence plain-, fact.oecasioned culpable tiff, where side is and not unconscien oh thе retaining been, would if' tious. cannot be than it here better action, bond; and, to to an had refused plaintiff pay the.duty now bond, he matters very had in his defence pleaded framed, insisted difficult to have on. been certainly have .would a to law. the objection sustain such a defence in of If plea point to be been as on, were insisted that would to have a. .proper seem to devised; looking mode of it as though, eould have'been meeting bond, it withdraws of not a penal consequences paying while it conti at all future the customhouse party credit also nues, appropriate. we do not may mode say present 1005. 1012,. Burr. R. Macfarlan, Lord 2 Mansfield, Moses vs. received, observed that it anof action for had and speaking money which lies for or a mistake, hap-, consideration money paid by or im or fail, (express to got imposition, pens money through taken advantage or оr or an undue extortion, plied,) the oppression, for the protection to plaintiff’s situation, laws contrary added, word, one under such he persons And circumstances. the circumstances of' under' is, defendant, -gist action that 'to re and justice equity, ties case, natural obliged, by also, Dickason, 1 Term he Rep. fund the vs. money.' In Bize been, man has actually that if a always paid, said: rule snot have him what pay., compelled what the law would he recover ought, he cannot it back again:. conscience equity which mistake, under a there was no. where money But conscience, recover claim in it back may again ground party this, Now, the entire of aciion. correctness of kind admitting by this doctrine extent, full no truth (and general its more-than can. it leaves the which the- open whole matter be imputed it,) whether there turns; is, any-Want that controversy present it leave» money. in the collector’s And retаining conscience what would if the mis untouched ground, effect wholly been thereon, consequence- had. consequent take the payment himself,, misconduct of negligence of the culpable he side, on the other where- could thereby default that, under- is, in statu Our quo. opinion upon principle, not be placed to be circumstances, no such action is or ought maintainable. allowed; vs. Duncan, 6 Barn. Cresw. party In Milnes fact, no. there recover back a money paid under mistake .of ; n the deci Of the very ground laches him imphtabledo a money If .case, party'pay Mr. Justice said: Bayley In sion*. But if Under, law, mistake he back. h® a cannot recover z 2 SUPREME COURT. Beni vs.- $!. mistake, facts, the real im a laches money pay putable i,n avail himself of the his omission him, respect n means recover hack the may he within his power, of knowledge there is, whether case, was, added, in this moneys he made the time when payment, facts; or negligence imputable the true ignorance state-.of the means of within his knowledge himself in n'ot availing him So here see it admitted negligence we power stitute con Greenwood, In Skyring defence good .suit. paid by was held 281,,it money a"paymaster Barn. to Cresw. again, recovered back officer, could not be claimed army breach and of off, guilty of set been by way having certain officer communicating in not information negligence of officer, claim the money the.disallowance ordnance an earlier when his period, board of con paid by duct cases, have been influenced it. These might although not with show fhateven in cases point clearly exactly-in present, facts, if the party-has under a mistake of money, paid guilty transaction, breach of negligence, proper he is not entitled to recover or to paid, back retain money, *7 if other whose or conduct rights unpaid, party, been affected or breach of We think negligence duty. a one, sound to and should not hesitate even principle adopt there were no it. Its authority support application circum stances of the case cannot well he present questioned. Here, by the and conduct solemn affirmations, oath, of the plaintiff, the States of the United position has been entirely changed; pro up has been delivered perty custody government, examination, m perfect the. search confidence that all now estopped and we think right; from setting up excuse him from negligence, own culpable the payment of his own duties, which, Oath, and to be admitted due, gnd obtained a thereby goods. delivery matter, not be In this view of the it might necessary for the Court to answer which’ question, the-other the Court upon below was di as our to the first decides the vided, case. But аs the same answer merits of the plaintiiPs is involved in Hardy Hoyt, which has in connexion with argued present, we shall now proceed to the it. The consideration of question is, whether silk hose subject imposed on hosiery by the second clause the second act section 1832. ch. .224. That enacts, section that from and after the 3d day March, on mentioned, the articles therein after there shall he levied, collected, and paid, following duties First, : wool, unmanufac tured, certain duties in the first specified clause. Second, (which is cloth, clause in all milled and quéStion,)On felled known by the name of plains, or kendal kerseys, cottons, of which wool shall bé the only .material, the value whereof shall not exceed thirty-five cents a square yard, centum ad five,per valorem; on worsted stuff ¡271 TERM', 1839. B. Bend as. .Jesse Hoyt] of silkand other worsted,tenpercent- goods,shawls,and manufacture^ centum ad worsted valorem; twenty.per valorem; on yarn', ad um on and centum ad fiftyper j four cents per pound, valorem yarn, woollen on and blankets, mits, hosiery, carpets gloves, bindings, car- Brussels; cént., Wilton, except twenty-five per petings, treble cents sixty-three which shall be carpeting, square ingrained Venetian ingrained carpeting aiid thirty-five cents yard, at. blankets, the value ,at yard; the square except shall not whereof exceed seventy-five each, exported place whence cents to be which shall centum ad levied five valorem; flannels, baizes, cents bookings, square yard, sixteen merino centum; laces shawls warp thirty-five per made of,which wool, all other wool, wool manufactures com- and on made centum ad ponent part, ready clothing, fifty per valo- connexion, Now; clause, rem.” the terms of this and the looking stands in which with other enumerated hosiery articles, the be, construction of it natural it was certainly restricted to- which wool generis, that is hosiery, ejusdem sáy, hosiery wo'ol, or of It stands in component part. connexion with mits, gloves, binding, blankets, and the carpeting, exceptions it are all and carved of articles wool, viz. composed certain of. ki'nds carpetings flannels, blankets. is followed by bookings, baizes, laces, and sweeping. coach shawls, merino then . come the “ words, all other wool, manufactures or of which wool is a component seem to part;” certainly presuppose that all the enumerated articles were of a preceding kindred nature “ and fabric.' The words made ready clothing,” this enume- follow ration, and, therefore, are not necessarily governed by the same since interpretation, not inserted as qualification of-the they words sweeping already to, referred but stand' as an independent descriptive specification, of capаble being applied every variety made ready clothing, whatever be the fabric. No may argument, therefore, can be derived from properly of the clause re- specting ready control the clothing, natural deductions from antecedent arising language same clause. .the But the case before us does not turn interpretation of ,-thesecond alone.,but it standing clause affected is-materially by the *8 fifteenth clause of the same act, section which prescribes a rate of on manufactures duty silk, in the following words: On “ all manufactures of silk or of which silk shall be a component part, from coming beyond of Good ten Cape Hope, per centum ad valorem, and bn all manufactures silk, or of which other silk is a- five component part, per valorem, centum ad except sewing silk, which shall be forty'per centum ad Now, valorem.” this language, in its positive import, includes аll manufactures of silk sew- except silk; and ing the very exception silk, sewing lends additional force to the conclusion, tfyat no other manufactures of silk were in- tended to be excepted from the operation clause, upon maxim, well in. a exception statute amounts to an SUPREME COURT. Hoyt] B. Bend w. Jesse
{William its application affirmation excepted Upon all other cases provisions not can this then, what Court ground, say, that silk hose, silk, a manufacture solely exclusively liable of the section ? duty Imposed by fifteenth'clause none, unless'it to'some manifestly appears repugnant other tobe No of the statute. such exists if-we con- provision repugnancy “ m the strue tion to or of which wool is a second clause of hosiery,” second word sec- in its natural mean, connexion imports, hosiery wool, hand, On the component other part. if we “ connexion, construe in this include hosiery” hose, silk then all other manufactures sewing silk, are not except governed by clause; the fifteenth tween the and thus we create positive be- repugnancy Now, and fifteenth clauses. second the'duty .is as to Courts of Justice so construe all statutes full effect give to all ,word§. their can be sense, ordinary if done; properly n thus preserve harmony of And provisions. besides, we are to' create an as to implied hosiery, same exception mits, rule if to silk silk might applied silk gloves, bindings; there are articles, Indeed, of silk. there carpetings be no end to If meant implied exceptions. legislature spe- hose, silk cially silk to have except particular manufactures of course general the natural would have language, - them as silk; with placed exceptions sewing the oniis- sion' is, in our judgment, conclusive to show none others were tfyat intended. If we look back to 1.9th May, act of the 1828, ch. 55, which the act of 1832 was in'a measure to designed great modify which, or “hosiery” and in first’ time in our supersede, legislature,, mentioned, eo cannot nomine; there be-a doubt that intention, then, the legislative to woollen confined hosiery. The second clause words: second section act is of that- in” following “ wool, On manufactures of or of wool shall be a component blankets, worsted except stuff part, carpeting, bombazines, hosiery, mits, gloves, bindings,, the caps, actual value of which at the whence place imported shall not exceed fifty cents the square yard, shall be to have deemed cost fifty cents the and be square yard, ad the with charged, forty per centum &c., valorem, &c.” third, fifth, fourth, and sixth clauses of same section lay particular other manufactures wool, aforesaid;” seventh, “exceptas then taking up “on exception, blankets, woollen says, mits, gloves, hosiery, cent, bindings, twenty-five ad per valorem.. On clothing ready made, fifty centum ad It is valorem.” impossible, reading clauses connexion, these the second not to perceive exceptions clause, wool, of fabrics of or of wholly which wool ais component material; for must be every exception considered such a case to be Then something generis. follows in ejusdem “ sixth.clause, On all manufactures of or which material, component coming beyond Cape Good *9 TERM, 1839. B. Bend vs. Jesse [William Hoyt.]' ceptum up duty twenty valorem, ad &,c.; Hope, and component whiph or silk, sük be' other manufactures shall .hen, material, centum ad twenty per these Construing, .valorem.” materia, in pari, acts as if were- liberty beyond [o we. look 1832, to the the act of antecedent of the law on 'state subject, this as such, on (cid:127)the to hosiery, confined or wool, hosiery component is a wool of which part. doubt But corud be entеrtained tire act ch. ó£ 1832* 224, itself, or interpreted by by laws, the antecedent we none. think can be whatsoever entertained as to the .true inténdihent and opera- March, tion of the 1833, ch. 354.' That act .act .2d in ¿ddition section, enacts, fourth that in expressly articles then .from act of exempted 1832, laws, other existing from, of .duties, payment following articles, from and imported until', pf 31st-of after the December, June, the 30th shall also admitted wit, free “to duty; bleached and.' linens, linen, table unbleached linen and finen napkins, cambrics, manufactures, stuff shawls, worsted and other of silk worsted, silk, manufactures of or of which silk shall be .the of chief valué, ;material from this component coming side of the silk.” Hope, This except sewing section, Cape Good express terms, declares that of silk from this eoming side of manufactures Good Hope, the hose in Cape (which very predicament the silk shall question,) except sewing free from duty.' And it would violate legislature every interpretation hold, that where the rule declared all had manufactures one, free except of. Court should create duty, its exceptions own au- without, thority, legislature, any express implied intent part manifested in the warrant such exceptions. context we are whole, first, opinion, facts stated, the is not present.action and, maintainable: secondly, free silk hose is be sent to the Circuit act A of 1833. certificate will Court, accordingly. Justice Mr. dissenting. Thompson, controversy amount is too small to attach mucn that account. But the involved in importance the' principle effect decision, and it is to practical the course of business the merchant collector; between for' excuse from the my publicly must dissenting opinion of of so Court, in a case little apparently itself. importancé concur fully t part opinion exempts imf^at in from from hosiery) but dissent question-(silk any-duty; which exonerates the collector from an ac-tion re- part back, the received auíft'ffrity cover '-war- without him. law. rantedby Court, oy TheK>nly point certified to tliis presented plaintiff is entitled from the recover collector sum whether have been paid admitted to him money, mistake* 35. COURT. SUPREME B. Bend Hoyt] least misconduct off colour suspicion fraud collector before the and the mistake made plaintiff; *10 claim to have it interposed and a deducted was money actually paid, other, the the Court cer- upon point from his bond. opinion which the the-silk tified, hosiery the settles was therefore iii money was not was paid, subject duty. it, to hold right whatever collector, any the hands the a but demanded voluntary Of not law; payment, 'exacted violation at the if the bond under the of credit loss penalty,of circumstances, cannot be money was not If, under such paid. stern princi- bаck, unyielding recovered it must rest upon some justice of law or manifest ples public-policy, case. law or But, no principles public policy there are judgment, my part that-can such a pollector. course-on- uphold state, a little more particularly, But circum it bemay proper was collector. money under which the stances Courty in the an affidavit plaintiff pro the trial Circuit and he cannot and-read in now: by duced evidence defendant^ therein., of the facts stated. In this the truth permitted deny March, states, that in affidavit, heimported from plaintiff cases Roscoe, and casks eight hosiery Liverpool, gloves, in ship Adams, manufacturers of Nottingham owned Barker and by to him for sale. That his them clerk England, consigned by invoice, wording no.t able to ascertain from - , knowing contained and which packages gloves hosiery, he duty; 'cotton same entered' gloves cotton hosiery paid, them all at and a gloves, the customhouse as cotton twenty- cent, the collector, five them and he by gave -was-charged upon bonds for the That an examination the duties. upon cases, 45,he contained marked B found goods in one of the them td.be as entered at the' cus and not cotton spun hosiery, gloves, tomhouse. That the called the original goods upon invoice -are. knots,” at the a term well ñrthe passed customhouse, “spun trade to be of silk be applied only; verily hosiery -lieved, that the error of the said case as arose duty, entry paying from the That he did ignorance the clerk made who the entry. n not does, this, nor whether the upon occasion examine customhouse entries And he further made clerk are correct. by swears, that, that he had to the case; sold never best of his' belief, taken from-or knowledge and had'been nothing added but that it was in the same .to condition every respect as it was when he received it. This establishes, deposition entry beyond controversy, was a pure ignorance mistake. it arose suppose .And the-clerk in ?- knots spun kind of called understanding It was. who ignorance of customhouse officer equally received made, for not entry; entry the" only which the oath states that the original invoice presented is. required article knots; denominated but it is spun Which TERM, 1839. B. Bend Hoyt] law, invoice should original produced collector at made, the time the the same means s. 36. Story, He had. therefore what the cases knowing contained, as the clerk cases not made entry, having or opened examined. who therefore, a case was, of mutual error mutual ignorance. whatever for grounds charging with plaintiff There ligence neg- case. He pursued the course business. ordinary Entries customhouse are made clerks. usually But if no mistake clerk can be corrected, merchant every will be to submit in silence to all obliged losses by mistakes, occasioned to make his attend in entries; which will be person entirely changing course of But business. suppose himself had ihade mistake; can be that beyond reach the law to correct such mistakes. The now laid down rule the Court would equally to such a extend pect case. there are whatever-to any grounds If .sus- fraud it is imposition, But to open inquiry. close the door against mistakes, innocent correcting on any suppqsed ground severe rule to public,policy,' applying very the transaction of ,and .customhouse, business at the called for that, one *11 in my judgment, is not the revenue protect' And the country. to very form of the oath law to required made on the entry, presup- committed, that mistakes be poses and may correc- provides tion of them. that on whose is made, oath the person swears entry invoice and bill of collector, to lading presented is the true, and invoice only received, con-, of the goods entry tains' and true account of the to just according the invoice' goods bill to his lading, -been nothing knowledge has sup- concealed, or be pressed whereby United States may defrauded oh any the-duty lawfully due the said part goods; thereafter, if at time any he discovers error in the any invoice, or in the account &c., rendered of the he will make immediately thejrsame to known collector. There is in this to nothing mis-, it take out the rule law to innocent applicable ordinary takes. . The invoice was original produced laid before the collector law to required, be as'by examined and with the compared entry; invoice aré If, goods denominated knots. there- spun fore, there was any error in the clerk supposed them as in-entering was to have gloves, and he the-error; collector with corrected the, But, as is much as clerk. chargeable negligence 'reason why.no notice was of.it, doubtless, was, taken that'it al- he; in the view unimportant, together collector: for consi- dered the duty chargeable as upon that it goods hosiery, immaterial whether-it was perfectly cotton or hosiery.. in the case to the error or show that mistake was nothing There not covered; made known to the immediately soon as it .was dis that the collector made any .objection correcting it tp account. And was in that it was made proof wer& before duties been settled this paid.' having himv COURT. SUPREME Bend B. Hoyt] Congress, the acts of true construction according Court, no doubt there can be this hosiery, be demanded could
no his bond suffered duties, but not pMd had the plaintiff that if have been duties might estimate mistake bé prosecuted, the bond. bond defence, deduction way of set up duties; for the sum certain of any for the given payment is not a Condi amount, with cover the supposed á sufficient in penalty the goods ascertained upon of duties to amount pay tion b.e 68: and the question.is s. to, Story, referred due amount what was the to inquiry, goods therefore-open But has occurred. or mistake any error entry, such contained in with-, sued, themselves cannot permit in the bond the obligors Con customhouse; for the act of their- credit out forfeiting has' been received either whose bond declares, that no gress person duties, which bond of' for-the or surety as principal credit for unsatisfied, allowed future shall be be due and may duties, or satisfied. And the mer shall be until fully paid such bond duties, illegal to the small paying had submit imposition chant better his credit sus amount, than are of if. especially they can in a suit try until he at the customhouse pended upon circumstances, such is but the bond. exacted under Money suit to duress, if the collector is .re protected little short of of law cannot believe that there principle cover it back. I work Due permitted injustice. that can be public policy, notice mis the bond fell due of the to the collector before given bond; to have the take, and a claim deduction late, pretence collector too notice.came conduct of fraud unfair .en .plain any suggestion the.párt with full tiff The collector therefore of all knowledge acted under an indeed the mistake.' For implied facts—and admission act instructions he.professéd comptroller of. that no errors of fact be corrected the merchan-< could after treasury, the. dise had control of the officers of the customs. passed beyond such be the rule of no errors or If mistakes can corrected, unless shall be every’package and exa opened stores merchant, mined at which would be before- delivered *12 the-public to the course contrary uniform of business. But I instructions of are net to be comptroller .assumed .trust law. Although instructions from the department afford treasury may collector, an violation of for apology him from exonerate intentional any it yet can ne^er be duty, admitted, that can shield they all him when not responsibility, warranted from the rules and by of law. If any is principles position, to. authority nécessáry support- it-will be found in the case of Elliot Swartwout, 10 Peters, 153,where it is down, laid that expressly instructions change cannot treasury department law affect the. rights Of the that the parties: collector not bound to take adopt is. instructions, but to' liberty himself,-and is->at “for' act judge TERM, 18?9. B. Bend vs. And, case, in that responsibility personal, accordingly. held to be governed and his examined; liability is collector full]' to the treasury he has over the money fact, рaid whether before him. ,'it to given has been to have refunded a claim any notice of to over paid has been to its the.money where settled, it is that And there being pbid over, without any objection notice treasury, can suit and no payment; voluntary is to be considered purely it when, it back': recover the' collector to against maintained be that to the collector the. is notice at the time of payment, given awith too accompanied duties are charged high, declaration, to intends him money, by to recover back the amount party paying prosecute paid, in erroneously such case' the col is lector- liable. And the Court personally- add; such must . bé rule, unless the necessarily broad can proposition be main that no will tained, action lie against a collector to recover ah back -him, but of duties paid excess recourse must be had to the redress. for Such a government extending principle, say Court, would be an to. exemption public officer, beyond any protection of law principle sanctioned or sound public policy. And nume cases English rous to, Courts referred ih where suits have been officers, maintained against public to recover back money-paid a release and obtain discharge goods- seized, -which were not to seizure: the Courts liable observing, revenue laws ought - be made the of. means oppressing And subject. if. action would lie to back recover money paid to obtain possession seized, of goods illegally the same will sustain an principle action back exacted, money recover illegally for of' penalty feiting the customhouse, credit due notice having given to the collector not to it tó the over doc treasury. true pay trine on this subject laid down in the case Dickason, of Bize vs. - Term. 286. Lord Rep. Mansfield there said the rule had always- that if a man been, has what law paid would not have com him to but what pelled pay, and conscience equity ought he cannot recover it back in pay; an action for money had but where under a mistake, received: was money which there ground claim in conscience, the recover it back party may in this kind of action. If this again rule, true of which I - there doubt, think can be no to recover right in this back case. that was money fully proved included his bond mistake, held in law or it; conscience retain of the bond right and-payment exacted under forfeiture of at the custom penalty credit action house. recover back If an collector cannot be maintained money circumstances, paid under such is difficult-to conceive a case Would sustain an action. This cause record came heard on transcript the Circuit Court оf the United district States the southern ;York and judges New on which points questions A XUI. —2 Von- *13 COURT. SUPREME .278 B. Bend vs. [Williani were and which certified in opinion, Court were opposed the said the act of Congress its agreeably opinion, this Court , counsel. On and, con- argued by provided; First, this Court, whereof, is the opinion sideration Bend, is entitled to re- case, the stated in the the facts pf him on number package duties paid by excess cover back silk hose is And, Secondly, the case. 45, as mentioned the act of 2d free of duty,'under to be admitted entitled act act of the 14th An March, 1833, entitled, modify “ on which silk is acts imports and all other imposing of July, all., or of that. manufactures declares which the this side value, of chief coming material component shall be free of duty. sewing of Good Hope, except of Whereupon dape Court, that it be so it is and adjudged by ordered be remanded Court; this cause Circuit certified said had therein Court, may to'ffhe proceedings further .said law. according