Opinion of the Court. dian Territory, and for other purposes," act of May 2, 1890, c. 182, 26 Stat. 81, it is provided "certain general laws of the State of Arkansas, in force at the close of the session of the General Assembly of that State of 1883, as published in 1884, in the volume known as Mansfield's Digest of the Statutes of Arkansas, which are not locally inapplicable or in conflict with this act or of any law of Congress relating to the subject specially mentioned in this section, are hereby extended over and put in force in the Indian Terrritory until Congress shall otherwise provide; that is to say, the provisions of said general statutes of Arkansas relating to," etc. The act then enumerates certain provisions of the general statutes of Arkansas as found in Mansfield's Digest, including the following: "To jury, chap. 90." The law relating to the question here raised is found in chapter 90 of Mansfield's Digest, sections 4013, 4014, and 4015. Section 4013 provides that "if either party shall desire a panel, the court shall cause the names of twenty-four competent jurors written upon separate slips of paper to be placed in a box to be kept for that purpose, from which the names. of eighteen shall be drawn and entered on a list in the order in which they are drawn and numbered." Section 4014 enacts: "Each party shall be furnished with a copy of said list, from which each may strike the names of three jurors, and return the list so struck to the judge, who shall strike from the original list the names so stricken from the copies, and the first twelve names remaining on said original list shall constitute the jury." Section 4015 provides, in substance, that before drawing the list of eighteen provided for in section 4013, "the court shall decide all challenges for cause, which are presented, and, if there are not twenty-four competent jurors, bystanders shall be summoned" "until the requisite number of competent jurors is obtained, from which said list shall be drawn." Under these sections, then, the parties are entitled, after the challenges for cause have been exhausted, to have a list of eighteen names drawn according to the terms of the statute, upon which list their peremptory challenges are to be made. Opinion of the Court. The action of the court below was in violation of this statute. It refused to make up the list of eighteen, as requested, and confined the right of peremptory challenge to the twelve jurymen called to be sworn, on the ground that such was the custom or rule of practice of the court. Manifestly, the "rule" or custom of the court could not override the mandatory terms of the statute. That to thus empanel a jury in violation of law, and in such a way as to deprive a party of his right to peremptory challenge, constitutes reversible error is clear. United States v. Shackleford, 18 How. 588; Smith v. State, 4 Greene, (Iowa,) 189; Schumaker v. State, 5 Wisconsin, 324. This well-established doctrine has been applied to the statute in question by the Circuit Court of Appeals of the Eighth Circuit in four cases, coming from the court whose judgment is under review here, the ruling of the court below there passed on being in all respects like the one here presented. Railway Co. v. James, 48 Fed. Rep. 148; Railway Co. v. Washington, 49 Fed. Rep. 347; Railway Co. v. Childs, 49 Fed. Rep. 358; Railway Co. v. Martin, 49 Fed. Rep. 359. It is asserted that these decisions are inapplicable, because the request here made was not for a panel under the statute, but this contention is obviously unsound. The request for a list of eighteen as provided for by the statute, upon which to avail of the right to peremptory challenges, was necessarily a request for such a list, made conformably to law. Besides the request, which was refused, asked not only that the list of eighteen be furnished, but "that the jury to try this cause be selected in accordance with the statute in such case made and provided." Reversed and remanded with directions to set aside the verdict and grant a new trial. Opinion of the Court. BARNEY v. RICKARD. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK. Under the act of February 26, 1845, c. 22, 5 Stat. 727, a protest against the exaction of duties on imported goods, in order to be available for recovering the amount of duties illegally exacted, must be made at or before their actual payment; and when the importer deposits with a collector an amount supposed to be sufficient to pay the duties, subject to future liquidation, and receives the goods, and on such liquidation an amount is found to be due the importer as overpayment and is refunded to him, a protest made after the deposit and receipt of the goods, but before the liquidation, is too late and is of no avail. In an action, tried in 1890, to recover duties alleged to have been illegally exacted in 1861 on an importation of bareges, grenadines, maretz, and merinos, the plaintiff introduced no samples of the imported goods, nor any evidence as to their loss or destruction, and gave no reasons why they were not preserved and produced. He showed to one of his witnesses samples of grenadines, bareges, etc., but without connecting them in any way with the importations, and questioned the witness concerning them. Heid, that their admission tended to mislead the jury, and was error; and that such evidence came within the rule that "a fact which renders the existence or non-existence of any fact in issue probable by reason of its general resemblance thereto, and not by reason of its being connected therewith, is deemed not to be relevant to such fact." THE case is stated in the opinion. Mr. Assistant Attorney General Whitney for plaintiff in error. No appearance for defendant in error. Mr. S. F. Phillips and Mr. F. D. McKenney, by leave of court, filed a brief on behalf of defendant in error. MR. CHIEF JUSTICE FULLER delivered the opinion of the court. Opinion of the Court. This was an action to recover duties alleged to have been paid on some thirty-nine importations made during the years 1863 and 1864 from France into the port of New York of veil bareges, plain bareges, crepe maretz, grenadines, and merinos. The action was commenced January 24, 1866, and tried in May, 1890. The trial resulted in a verdict and judg ment for the importers on all of the articles mentioned, except the plain bareges. These questions are presented by the record: First, whether the protest complied with the requirements of the act of February 26, 1845, c. 22, 5 Stat. 727. Second, whether certain samples were properly admitted in evidence for the consideration of the jury. 1. Two of the importations are referred to by the government as bringing out the first question with distinctness, both of which were made prior to June 30, 1864. The record reads as to these two importations as follows: "It appeared that in case of the importation covered by Exhibit 28, at the time of the entry thereof, February 15, 1864, the plaintiffs' testator deposited with the defendant, as collector of customs, an amount of money which was equal to an amount of duties thereon at the rate of about 40 per centum ad valorem; or, in other words, an amount in excess of the amount of duties subsequently ascertained on liquidation of the entry; that upon such ascertainment or liquidation the defendant, as said collector, retained out of said deposit a certain sum as duties, and thereafter returned the excess to plaintiffs' testator; that the entry was so liquidated, and the plaintiffs' testator notified of such liquidation May 16, 1864; that the excess of the amount deposited with the defendant, as said collector on February 15, 1864, over and above the amount of duties actually found due on liquidation and retained as above, was refunded to the plaintiffs' testator May 23, 1864; that the plaintiffs' testator obtained possession of each and every part of said importation on or prior to February 26, 1864, and that the protest relating to said importation was dated and endorsed March 4, 1864. "That in case of the importation covered by Exhibit 38, VOL. CLVII-23 Opinion of the Court. at the time of the entry thereof, April 20, 1864, the plaintiffs' testator deposited with the defendant, as collector of customs, an amount of money which was equal to an amount of duties thereon, at the rate of above 40 per centum ad valorem; or, in other words, an amount in excess of the amount of duties subsequently ascertained on liquidation of the entry; that upon such ascertainment or liquidation, the defendant, as said collector, retained out of said deposit a certain sum as duties, and thereafter returned the excess to plaintiffs' testator; that the entry was so liquidated and the plaintiffs' testator notified. of such liquidation May 16, 1864; that the excess of the amount deposited with the defendant, as said collector, on April 20, 1864, over and above the amount of duties actually found due on liquidation and retained as above, was refunded to the plaintiffs' testator May 19, 1864; that the plaintiffs' testator obtained possession of each and every part of said importation on or prior to April 30, 1864, and that the protest relating to said importation was dated May 3, 1864." Both sides having rested, defendant's counsel moved the court to direct the jury to find for the defendant as to each of the importations covered by Exhibits 28 and 38, on the ground that the payment of the duties sought to be recovered as to each was paid on or about the dates of the entries, and the respective protests were not made until after such payments. This motion the court denied, and defendant excepted. Defendant's counsel also moved the court to direct the jury to find for defendant as to the importations covered by Exhibits. 28 and 38, on the ground that if the date of the payment was not the date of the entry, and was the date of the liquidation of the duties and the notification of such liquidation, Rickard obtained possession of the goods without such payment, or in other words, did not pay the duties to obtain such possession. This motion the court denied, and defendant excepted. It will be perceived as to Exhibit 38 that the record states that Rickard at the time of the entry, April 20, 1864, "deposited with the defendant, as collector of customs, an amount of money which was equal to an amount of duties thereon, at the rate of above forty per centum ad valorem, or, in other words, |