782
.PDERA-L .
,vCll. 45,...
..', UNITED S'l'ATES tJ. EARNSHAW.
(Distrf.ct OQurt,
s. D.,fle,.o
York. MQ.rch 31,1891.) .. : ,
' .. :.'
.:rhe ,collector 'baving ot customs !lases and t'be, appointment ot a proper appraiser, any objections to 'the. latter 'must be made ftrst, to the collector, and afterwards due protest and appealtnade to the secretary of the treasury under section 2931, in order. to entitle to raise suet!: object}ons as a defense when sued for the duties .as liquidalied, The I'E'cent cases' at U. S. v. Schlesinger, 120 U. 109, 7 Sup; Ct. Rep. 44:a,' and Oelbermann v. MeT'l"Ut, 123 U. S. 856, 8 Sup. Ct,Rep. 151, not changed the tj),rmer rille.
ANI> APPEAL NECESSARY TO DEFENSE-REV. ST. §- 2931.
TO RllOO'v'ER..;..OBJEOTION TO.A.PPRAISER'-:"PROTEST
S. Atty:, fOf defendant., ' ..
'Asst. u. S.
an ameJldment to the not touch the gro'\lndsupon which, on demurrer, the fQfmer was held insufficient.. See, opinion, 12 .Fed. Rep. 283. the den11jlrrer tothe,am,:mded answer the defendantclaimf! :that the d,claions Qnhe supremecourtin U. S. v. $chle8inger, aod Oelbermann v. Merrttt,123 U. S. ··151, have overruled the groundsof the former decisioQ: of, of those cases I dO not find the lIustllined. The,action is to recpver a balance of duties, as liquidated by .the collector. The answer setl9up that the :ll-ppolnted by the collector; to reapprajs6 the goo(jls was not as reqllired b,y section 2930pfthf'lReV1sed:Stat'\ltes; and alleged ffl,ct$ which it is improper perSiOn. Thfl does not set ,upthatwyof llll.eged facts ,were, stl,\ted.1i9 only thaUhe to.the in writing, Qpjections" to 'Such me.r<mJ1ptapprllislilr, to- his aoting aSi)ucb, ando"l'equested him to: appoiQt in, his: the QOllector "did not reply 'to such objections, and never took any Mtion: in thp. mat.The answ,er:d:oesl1ot state what "the objec:ter JiQns' I to the colleotor:ool': whether tbeY any actiqn :00 hie part; nor is it ,pJel\ded took ,any P,l':. reg,uested. to :,sums,:ll!S to!, fyj ng thetrptb ;of, 1the 0 bjectionsptesented, b,eenl otJ1er: thardo son'le different appraiser. No fraud is alleged, lior irregularitN.·nQrneglect<>f any duty by the collector that he Wll$ JAglllly.,requil'edto,pe.rform.'To sustain such a pleading would be' to hold that the importer, by simply objecting and asserting to the collector that the merchant appraiser ap. pointed by him was not a discreet and experienced merchant, could stop the collection of duties, raise that defense when sued, and prove any
BROW!f"J.
.,I
' "
' : ;ii!
UNlTEDSTATEStl.EARNSHAW.
783
general charge, though no Mtice of them had ever been· given to the collector;: nor any evidence of their truth, In theforiner. decision· it was' held on, broader 'grounds that the assessment of duties, and the the qualification of the merchant appraiser upon any objeetions inade against him, were within the scope of the (Jollector'e jUrisdiction;' tht· his:deeision thereon; in the absence of an1ifra,ud or irregUlarity in the proceeding, (neither of which· are' c()uld not 'be questioriedcollaterally, or, in any' sub!iequent'eluit, except after due protest and appeal, as provided by, section 2931 of the ReviSed Statutes,whichdeelares that his tniMtion·of' be final and c01llclnsive,nnless: protest and peal'betaken'. It WIlS further held that if such protest Wall made, and an: appeal was taken and 'overruled, theproceedings;in reference to the appointmeDtof the a.pprais8r' could be reviewed. in a. subsequent action for duties. II find nothing, in thecasea ofSchliBinger and Oelbermanri dispensing with the iieeessity. of' proteSf<itnd ,Due protest arid appeal were taken in 'bothoftltos8 'cases;' The fortnerwas a' suit fofthe was to recover back recovery; (jf. aballl.neeOfduties 'like this, dluties,paid> In the, llltter casetbe snpreme court held that 'queStions concerning the qualification of the merchant can He raised in a backlduties after due protest,anuappea.J. In the dases ofWest'tay v.U.S., :18WaU.'S23"tmd Blatchf.29,it was adJudged' that such 'and necesSMY in order to· 'permitll.ny defensea;gll.inst thellSSe88mel1t"ood liquidation' in a suit :like,thllpresent to"reeover a balance Of' duties\ and in the Case of Sehlesillger, court' refer to both thecases;}ast cited, witb61it anY"!D'odificatiohof' thafTule:,; 120 U;S. 114, 7 442. . i l ' " · , ' , . case being'ifdr the recGvery of thelimtmntof.duties fixed by the'liqIliUation of the col1ect()r l theillifficiency insuffiCiency 'of :00. jectionsJfJo ;themercbantappraiserisaa dearly, itseems hi) IU&,:within tbe j'urlsdi1Jti.oh of. the eollector' to determine in the nrst :as· the rate 'of; duty, or of the' of goot:ls', under the pfoviaiobB of the for rlilquiring a, protestl).nd appeal from the importer, if objection is made, are the same in the former class of cases as in the latter,.nam!lly, the speedy collection of duties by the correction of any errors or mistakes that may be pointed out, and to give opportunity first to the collector, and next to the secretary of the treasury, to any Such ,errors as early as possible, and avoid unnecessary controversy, as well as to mainiain uniJormity of pro;'.I,'he: case of We8tray, supra, ceedings in all the ties the law as respects objections to classification and rate of duty. In principle it covers, to the ,appraiser. Section 2931 of the Statutes makes no distinction; and its 'plain intention seems to me to be Vlat,. for the asliquibaok,du paid, uatel1iwhetller1JyrejiSiiing.paYment or by suit to and that withoutthem,SC!16pg as the collector keeps ",itliin'the:scope,ol,his jurisdiction, any' mere·error
facts be thought fit·oh:the trial to.
or
784
I'EDERAL REPORTER,
vol. 45.
on his. part cannot be reviewed directly or indirectly. The only doubt, as it seems to me, that can arise upon the language of the supreme court in the case of Schle8inger is whether,,in the defense of an action brought to :recover duties after delivery of ·the goods to the importer, there can be .any review of the collector's decision, even with protest and appeal, if the collector has acted fairly,and not in excess.of his authority. No express right of review in such cases is given by statute. If such a right exists, it is by implication derived from tb,e. qualification attached by section 2981 to the conclusiveness of the collector's decision. Ordinarily on general principles, would be final; but the express ification of its finalty, if due protest .and appeal are taken, imports, I think, a right in that case to resist the liquidation by way of defense. Thus due protest and appeal are the foundation of any right of review; in all cases, where. the collectorin his proceedings directly. has not exceeded the limits of his, authority, and has acted,jn good faith. Hilton v. Merritt, 110 .97, 3 'Sup. Ct. Rep. 548. IntheopinioQS of'the supreme court in .the cases·of Oelbermnmn Rnd .Schle8inger thl'l protest and appeal are :repeatedly referred to as .conditions of the right to raise any suchobjeetions. 123 U. S. 364,367,8 Su:p. Ct.;Rep.151; Rep. 442. 120 U. 8.113, 7 If, on the other hand, it is intended to defend on the ground oHraud, of ,willful neglect of, a statutory. duty.,or of excess of s.ta authority, the answer must aver facts that show some of those dl:\fenses, which this answer does not ,aver.. The disqualifying facts if true, should have been brought to the collector's notice,· and proof of them offered; a.nd the latter factBshould have been pleaded as part of the defense. ,The general principle,s stated in the former,Qpinionas th,e grounds of the decision have been repeatedly applied since ill this cour,t in customs cases, Cu.s. v. Leng, 18 Fed-Rep. 15; U. S., v··McDaweU, 21 Fed. 28 Fed. Rep. 56; U. S·.v.Doherty, 27 Fed. Rep. .563; .0. S. v. Rep; 73,0;) and the sameprinciples,areQf frequent $pplication in cases of habeaa co:rpU&See Stevens v. Puller, l36 U. S. 468,478, 10 Sup. Ct. Rep. 911, and nUmerous cases there cited;,In1'. Vito Rv.Uo, 43 Fed. Rep. 62; 1'11.1'6 DWV,27 Fed. Rep. 678, 680. Dem.urrer sustained.
I'll. 1'e BLYTHE
THOMAS.
v. 'THOMAS.
(District Court, D. South" CaroUna. April 11, 1891.) .,
Where a bankrupt, 10 mOnths before adJudication, had' a8sfgned a note to a truStee for·tbe.purpose of protecting.his brother fromlilllbiUty·8&'.his surety, the trustee holds the note the statute of cannot begin to in his favor ilritlt the liability secured has been Bati$1led. and'the other persons intereeted the, fUnd have ba4 notice of tlle fact.' .' , '.' ·
BIlIGINS TO RUN. ,., ". '
,
ru.
