STORY, Circuit Justice
(charging jury). This is a mere question of fact for the jury. The act of the 20th of April, 1818, c. 74, § 4, directs, that the duties on ad valorem goods shall be estimated upon the actual cost, including all charges, except commissions, outside packages, and insurance. There is no dispute as to the meaning of the word “commissions,” nor is it susceptible of different meanings in the act. Whatever sum is bonfi fide charged and paid, as commissions, is excepted. A mere charge of commissions, where none is paid, or by the nature of the case could be paid, is not within the intent of the statute. The charge, if made by the seller or buyer of the goods for the purpose of avoiding the payment of duties, is a fraud, and. as such, ought not to be allowed. What is the present case? The invoice and account current are made out in the usual form. Mr. May is made debtor to the agent for the goods; but this of itself *1225proves nothing, as to the mode in which, or the person of whom, they were bought. It is the general course in all eases of agency, where the agent pays for the goods, to make out the invoice and account current in this form; and it is in proof, that the goods were purchased for Mr. May in the usual manner, and the usual commissions are charged. Where the invoice contains a charge of commissions in the usual cases, this is primá. facie sufficient for the importer. If the charge is supposed to be wrong, the burthen of disproving it rests on the government. It is not to be presumed, that the importer will swear to a charge, that is known to him to be incorrect; and when he offers to take the usual oath as to his invoice, he affirms in the most solemn manner its genuineness and verity. As to the form, in which the invoice is made out, it is conclusive upon no person. If any thing is proved by it, it must be taken altogether. But it is certainly open to explanation; and the explanation given in evidence shows, that the truth of the case is, as the defendant has asserted it to be. The argument of the district attorney is, that the seller of goods cannot charge a commission on the sale; and if he does, it is in fact a part of the price. That may be true; but the question must still remain, whether he is in realty the seller, or a mere agent and broker of the importer. If in the particular case commissions are in fact paid, the law directs them not to be included in the valuation. The universal usage in the hardware trade is, to pay commissions. The reason is obvious. The articles in an assorted order or invoice are numerous. They are to be purchased in small parcels, often at great distances, and frequently at no inconsiderable trouble. If the agent happens to be a dealer in one article, and to have that on hand, he charges his principal only with the manufacturer’s price, and thus puts him upon the same footing, as if he purchased of the manufacturer. And in point of fact, as all the witnesses state, it is now rare, from the subdivision of labor, for a broker or agent to keep any hardware goods to sell to his customers upon their orders. The commission of five per cent, on this invoice is the usual and lowest allowance. It is not doubted, that Mr. May has bonil fide paid it, in the same manner, as all other merchants pay it. If so, the court sees no reason, why it should not be allowed to him. The sole question for the jury is, whether the charge was bona, fide paid as commissions. If it was. the defendant has tendered all the duties he ought to pay. If it was not, then the verdict ought to be for the government.
UNITED STATES v. The MAY. See Case No. 9,330.
The jury returned a verdict instanter for the defendant.