STATES

V.

SEIDENDLr.G.

227

in favor of ,this claim. :Tf,you find that the articles were axles under the lalV, as I have stated, then your verdict should be for the defendant. If, taking these general principles, from a fair examination of the evidence you are satisfied that they were properly 'classified by the custom-house officers as axles, then your verdict should be in favor of the defendant, because then the collector had properly charged the duty. lfyou find from the evidence thr,t they were not properly classed, then they would come under the class of "hammered iron," and your verdict should be for the plaintiff for the 'amount of the difference between the rates of duty before stated, with interest thereon from the time the sum of money was paid. I believe the sums were paid in two different installments. The petition .states the amount. You will count interest on the aillount to the iirstday of the present term of court.
Verdict for defendant. Motion for new trial 0"'0 1'1' nled, and exceptions taken by plaintiff to the charge of the conn, and refusal, to instruct as requested by the plaintiff.

,UNITED STATES

V.

SEIDENBERG and others..

J'lIay, 1883.)

,

(Circuit COllrt, S. D. Florida.

1.

CUSTO)[S

2.

A reweighing of goods made by the collector and the regular wei'Thers, at 'Whieh a dilference from the original weights in favor of the was found, but of which no notice or order was given, and no record made, was not a rcliquidation of the dut ie" on said goods. See article 361 of the Treasury RegulatIOns. 21 OF ACT OF .J01m 22, 1874, (18 ST. IVO,l-REV. ST. 2785271111. The' ntry allurled to in section :n of the act of congress approved twentysecond June, 1874, (18 51. is the original entry provided for, regulated and defincd by sectiolB 278;) to 2 7 SO, inclusive, of the Hevised Statutes. '

On 'Yrit of Error. This was an action of debt in the district court, on five warehouse bonds, for the balance of duties alleged to be due the United States on tobacco imported by defendants. On two of the bonds there is no contest. . (1) On the eighth of October, 1877, 589 bales of tobacco were imported anel entered for warehouse, the tobacco weighed, and bond Ko. 3DD executed. Withdrawals of Lales of tobacco covered by this bond .were made in October, November, December, 1877; January, Fehruary, :Jlarch, June, and July, 1878; and the duties paid on each withIHeported brJoseph P. Hornor, EST, of tIJe Xc\\' Orleans bar.

228

FEDERAL REPORTEU.

drawal according to weights ascertained October 8. 1877, the date of bond. (2) On the twentieth of October, 1877, 184 bales were impol'ted and entered for warehouse, and on the twenty-seventh of October, 1877, the tobacco WDS weighed and bond 402 executed. Withdrawals were made in October and November, and January, February, March, May, June, July, October, and December, 1878, and the duties paid on each withdrawal, according to weights, October 22,1877. (3) On the twenty-ninth of October, 1877, 71 bales of tobacco were imported and entered for warehouse, the tohacco was weighed, bond 403 executed, withdrawals were made October and November, 1877, January, March, May, June, and July, 1878, and the duties paid on each withdrawal according to weights ascertained October 29, 1877. On the fourth day of May, 187b, there being in the bonded warehouse 34 bales covered by boud 3U9, 24 bales covered by bond 402, and 10 bales covered by bond 403, certain inspectors, the collector of customs, and the regular weighers, reweighed lH bales-l0 of 3lJ9, 3 of 402, and 6 of 403-of this tobacco, and found there was a difference in favor of the government, and estimated that on the whole of the tobacco covered by three bonds, between the tare originally allowed (at the date of entry for warehollse) and that found on reweighing, May 4, 1878, there was a difference of 1,812 pounds in favor of the government, the duties on which amounted to $634.20. No record was made. Subsequently the remainder of the tobacco was all withdrawn, and the duties paid according to first weights, and the collector made no demand for the additional duties until a reliquidation was ordered by the becretary of the tre<l sury, January 9, 1879, and on the twelfth of April, 1879, this suit was urought to recover the amount claimed. The defendants pleaded payment of duties on original weights and delivery, and that no demanu had been made for additiunal duties within one year from the date of entry. On the trial of the case the following charges to the jury "ere requested:
(1) If the jury tinll from the evidence th.at if, at the t"me the bn'ance of duties was found to be due the United States as alleJetl, all the merchantlise covered by the bonds sued on ha.1 not ueen delivered to the agent, owner, or all the duties had not been paid, thp" must find f..r the plai.ntIll; (2) that If the colledor failed to properly enter up the duties, as foulld due May 4, 18i8, the plaintiff should not be prejUdiced thereby, for the government is not responsible for the laches of its ollit-ers; (tl) that if the jury find from the evidence that the amounts claimed have .lOt been paid, they must find for the plaintilI ill the full amonnt claimed on each- bond, with interest at 6 per cent. from 4, 18i8

. sa.id instruc.tions were refused by the court, and the followmg mstructlOn was gIven
.. The only qnestion is whether one year had elapsell from the date of entry contemplated by section 21, act of June 22, 18H, and the time of the

STATES V. SEIDENBERG.

final determination or liquidation of duties upon which this suit is brought; and if whether, within that rear, all the goods entered undl:r bonds 399, 402, and 403 had been delivered to the importer, and the duties determined within that year harl been paid. .. I instruct you that the datcs of t:le entries contemplated in this case were the dates of original entry for warehousing, and the date of such subseqnent liqnidation, upun which this suit is brought, was the date of reliqnidation by the collector, January 16, 1879. The time elapsing had been more than a year, and the goods had all been delivered, and the duties determined at that tii,ne paid. "You will, therefore, not fina for the plaintiff on the fIrst three bonds; but as to the amuunts due on the other tlVO bonds, viz., 422 IIllll 424, there lUIS been no contest. You are, therefure, instructea to find for the plaintiff in the amount of $477.05, claimed to be due on bonds 422 aud 424, with interest at 6 per cent. pel' annum from January 16,

To which refusals to instruct, and to the instruction as given, exceptions were taken, and the case comes up on the correctness of the court's rulings. G. B. Patte1'son, U. S. Atly., for pla:ntifI in error. Bethel J: Allen, for defendants in error. PARDEE, C. J. Two questions are presented for answer:
(1) 'Vas the reweighing of the tobacco, (r.emaining in the warehouse under the three bonus,) of date May 4, 1878, a reliquidation of the duties on the whole impurtation? (2) In this case, when did the year of limitation provided by seetion 21 of the act of congress, approved June 22, 1874, oegin to rUIl?

1. The proceedings on the fourth of May, 1878, amounted to no more than an investigation. There was no notice, no order, no record. See Treas. Reg. art. 361. The government was not bound by it, the collector did not act upon it, and that such proceedings were had is now shown, not by the collector's books, but by his personal recollection. On the back of each bond a reliquidation is indorsed, but that is of date January 16, 1879, and there is no reference there to May 4, 1878. That the collector did not consider it a reliquidation appears conclusively from the fact that he made no record, as required by the treasury regulations, and he permitted the remaining goods to be withdrawn on tho payment of duties as fixea. by the originalliquidation. That the treasury department considered it nothing more tban an investigation, appears from the order of January 7, 1878, directing a reliquidation. So far as a liquidation is determined by the law, it is the decis.ion by the collector of the amount of duties, cbarges, and e"i.adions required to be paid on the merchandise. See Rev. St. §§ 2931, 2932. As shown by the record, the collector made no such decision in this case on May 4, 1878, nor at any time subsequent to bhe original liquidation, until January 16, 1879. 2. Section 21 of the act of congress approved June 22, 1874, (18 St. at Large, 190,) reads:
   

230

. FEDERAL

REPORTEr.,

"That whenever, any goods, wares, and merchandise shall have been entered and passed free of duty, and wh.enever duties 'upon any imported goods, wares, and merchandise shall have been liquidated and paid, alld such goods, wares, and merchandise shall have befm delivered. to the owner, importer, arrent, or consignee, such entry rond passage free of duty, and such settlement of duties, shall, after the expiration of one year from the time oj' entry, in t,le absence of fraud, and in the absence of protest by the owner, importer. agent. or consignee, be final and conclusive upon all parties."

What entry is intended in the foregoing section? An examination of all the statutes in relation to the importation, warehousing, appraising of, and the collection of, duties upon goods, wares, and merchandise shows only one entry required or referred to. 1'hat entry is the original entry provided for, regulated, and defined by sections 2785 to 2190, inclusive, of the Revised Statutes. That entry is undoubtedly the one referred to in the section aforesaid. A construction of all the statutes on the subject, or of the particular section, points conclusively to such an entry as being the one from which the year's limitation provided shall commence to fun. No other entry can be found as referred to, unless we go outside of the statntes. 'rhe treasury regulations speak of entries for warehouse, entries for withdrawal, and other entries, and 1\11'. Justice STRONG, in TVestray v. U. S. 18 Wall. 322, speaks of "entry for warehouse" and "withdrawal entry." The entry for warehouse is the original entry, but the term "entry for withdrawal" is a misnomer. There may be an application for permission to withdraw goods already entercd, which is called in the treasury regulations the "entry for withdrawal," which has certain requisites as to form, and it may be for withdrawal, for consumption, transportation in bond, or exportation; but certainly no such application can be the entry meant in the statute. And I see no good reason for arguing that any other than the original entry of goods was intended by the law. A full year, in the absence of fraud or protest, is givcn to ascertain the amount of duties. The time is ample, the opportunities are ample, for the go,ernment has possession of all goods in warehouse, and if the government is to be limited at all in the time within which duties may be reliquidated, the, term allowed by the statute from the original entry is sufficient. But be that as it may, if the intention was to allow the government to reliquidate at any time while any of the goods in the warehouse, and far one year thereafter, congress should have !:l0 enacted; but, as I read the statute, the time allow.ed is only one year from the date of the original entry. . It IS, therefore, my decisiC'u that there was no error in the charges and refusal to charge of the court on the trial of the case in the court below, that the jury were properly directed. The Judgment of the lower court will, therefore, be affirmed.

BALFOUR

V.

SULLIVAN.

231

BALFOUR and others v. SULLIVAN, Collector.
(C;rcuit Court, D. California.

1.

DUTIES-SHRINKAGE IN 'VEIGHT.

April 16, 1883.)

'Vhere a cargo of coke, imported from Wales, by reason of evaporation of the moisture contained in it during the voyage, weighed several tons less than when shipped, held, that duties could only be legally collected on the actual weight at the time of the importation, and not on the weight shown by the invoice.
BEGULATION OF THE SECRETARY OF THE TREASURY.

2.

A regulation of the secretary of the treasury, that duties shall be collected according to the invoice, unless the importer accounts, by proofs, for the discrepancy between the amount shown by the invoice and the actual weight at the time of importation, is no defense to an action to recover the duties exacted from the importer on the difIerenee between the amount actually imported and the amount shown by the invoice to have Leen shipped.

At Law.

ChlLl'les Page, for plaintiffs.

}'lr. Teare, U. S. Atty., for defenaant.

SAWYER, J. The plaintiffs, Balfour, Guthrie & Co., in January, 1882, imported into San Francisco, from Cardiff, Wales, a cargo of coke, which, upon its arrival and entry, was duly examined and weighed by the proper custom-house officers, and was found, and so reported, to actually weigh one thousand and ninety-nine tons, four centals, two quarters, and twenty-six pounds. The weight, as set forth in the invoice which accompanied the importation, was one thousand one hundred and forty-six tons and sixteen centals. The amount of duties payable on the weight shown by the invoice is one thousand one hundred and thirty dollars and fifty cents; while that payable according to the actual weight is one thousand and eightyfive dollars and fifty-nine cents,-making a difference of forty-four dollars and ninety-one cents. The collector demanded and collected the amount due according to the weight shown by the invoice, instead o'f the actual "'eight, which sum was paid by plaintiffs under protest, in order to obtain possession of the coke. The importers appealed to the secretary of the treasury, who affirmed the action of the collector; and tbis action is brought to recover the excess of forty-four dollars and ninety-one cents, so collected, on the ground that duties could only be legally collected upon the weight of the coke actually imported. Coke is a porous substance, subject to change in condition by increase of weight in a moist, and decrease in a dry,' atmosphere. Article 532 of the regulations of the treasury department, adopted in 1874, is as follows:
"Xo allowance will be in the estimate of duties for lost. or missing articles or package;; appearing on the invoice, unless shown. by proof satisfactory to the collector and naval omcers, not to have been originally ]a(len 011 board, or to have been IO:3t or by accident, during the voyage."