| U.S. Circuit Court for the District of Southern New York | Apr 21, 1857
I am not prepared to say that the counsel for the plaintiffs in this case is right in supposing that the proviso which concludes the 8th section of the tariff act of July 30, 1846 (9 Stat. 43) was repealed by the act of March 3, 1851 (9 Stat. 629.) On the contrary, I am strongly inclined to the opinion that the proviso referred to is in full force. I am also quite clear, that the proviso applies to entries made without any increase in the valuation given in the invoice, as well as to those in which an addition has been made to the invoice under the provisions of that section. I do not, however, intend to decide these questions, as I do not deem it necessary to-do so in the present case.
. I regard the evidence in this case, and the finding of the jury, as sufficient proof* that there was a fraud committed upon the importers, by a mis-description, in the invoices,, of the goods intended to be, and in fact, entered; and I am of the opinion that, when this fraud was discovered, it was the duty of the collector to correct the assessment of duties accordingly. The grades are matters of description. If, under like circumstances, coffee had been invoiced as best Java coffee,, when it was in fact a low grade of St. Domingo coffee, worth not more than half the-price of the former, and had been honestly entered according to the invoice, but, before the duties were liquidated, it had appeared that, through error or fraud on the part of the foreign merchant, the importer had entered it by a wrong description, and at double its fair dutiable value, I think the-importer would have had a right to demand that the duties should be assessed upon it asSt Domingo coffee, and only at its fair dutiable value. Certainly, if the invoice was of' “pure white lead,” and by error or fraud, the article actually entered was “whiting,” of half the value, it would hardly be contended that the proviso referred to should conclude the importer. I can see no real difference-
The protest was annexed to a copy of the appraisers’ report or statement, which, set forth this error in the grades, and it referred to that statement, and to the correspondence between the plaintiffs and the secretary of the treasury. It must, I think, be considered sufficient. Indeed, no objection was taken to the form of the protest, but it was insisted it was not made in time. Under the case of Marriott v. Brune, 9 How. [50 U. S.] 619, it was in time. The matter was for a long time in negotiation after the deposit or advance of the duties claimed, and the collector, as appears from the correspondence, was apparently willing to correct the error, if he could do so under the authority of the secretary of the treasury. This authority was refused, after which, as the case states, “the said entries were adjusted and liquidated on the 13th of September, 1855,’’.and after the protest had been made. The plaintiffs must have judgment on the verdict, the amount to be adjusted at the custom-house.