18 F. 891 | U.S. Circuit Court for the District of Southern New York | 1884
The defendant having, upon the authority of Bartels v. Redfield, 16 Fed. Rep. 336, 340, conceded the right of plaintiff to maintain the action upon the assigned demand, the only question remaining is as to the sufficiency of the protest. In 1858, when prospective protests were sanctioned by the courts, H. Herman at that time doing business as an importer in his own name, filed with the collector a protest sufficient in form and substance and containing these words: “You are hereby notified that wo desire and intend this protest to apply to all future similar importations made by us.” The protest was signed “H. Herman.” On the first day of March, 1859, lie associated with him one J. B. Deincsquita, and thereafter all business was done and importations made in the name of TI. Herman & Go. It is admitted that the collector exacted illegal duties of the firm which should be refunded provided an action can be maintained upon a protest made by H. Herman before the formation of the copart-nership. The statute then in force provided in substance that the decision of the collector should he conclusive against the owner of the merchandise unless he gave notice of his dissatisfaction in waiting to the collector. Act of March 3, 1857, (11 St. at Large, p. 192, § 5.) It will bo observed that this act does not in terms requ ire a signature to the protest, while the act of 1845 provides that it shall be signed by the claimant.
In the case at bar I cannot think that the collector was misled, the protest was very clear and specific in pointing out the grounds of dissatisfaction, and had Herman continued to transact business alone, it is admitted that it would have been sufficient. There would be hardly room to doubt that a protest in precisely similar form attached to a firm entry would have answered the requirements of the law, not only as to the merchandise described, but as to future importations also. The theory upon which continuing protests were permitted was, that the protest survived the particular act complained of, and was operative and in force as often as the alleged illegal act was repeated. Having once received notice that the importer regarded the exactions as unlawful, the collector, as often as-he compelled the payment of the same amount, was in law deemed to be informed of the merchant’s complaint, and for this purpose the protest already on file was regarded as having been made again and as attaching to each succeeding entry with the same force and'effect as when first made. Why then, in its legal effect, was not the protest here as effectual as if it had been taken from the individual entry and actually attached to the firm entry ? The collector, seeing such a paper signed by H. Herman annexed to an entry of H. Herman & Co. could not for a moment doubt its import. Upon the facts presented it is thought that adequate notice was given, notwithstanding the fact that the plaintiff took a partner and added “and Co..” to his name. If he had continued to import goods individually after the formation of the firm there might have been room for misunder
The plaintiff is entitled to judgment for the amounts which it is admitted were unlawfully exacted.