brought in the report of the master filed April 21, 1876. It is complained of this decree that it was made after the rights of the parties had become fixed by what had already been done under the previous orders of the court, and that the situation of the appellant was thereby altered greatly to his disadvantage. In reliance upon his construction of the previous orders of the court, the appellant had become the purchaser of almost all the obligations enumerated in the sixth class of the master's report, in the expectation that, upon a calculation of the amount due to those entitled to priority, the obligations thus acquired by him would be satisfied, or nearly so, out of the proceeds of the sale. The transactions by which he acquired the ownership of these claims took place, respectively, on April 23, 1875, March 15, 1876, and March 31, 1880, the last being the date of the sale. It is evident, in the first place, that the cause of complaint asserted by the appellant does not belong to him legitimately in his capacity as purchaser. The decree for sale rendered May 15, 1877, did not contemplate payment of the purchase money otherwise than in money. It gave a credit running through a period of five years in equal annual installments, with interest on each. There was nothing in the decree which authorized the purchaser to assume that he would not be called upon to pay each installment as it fell due in cash. As a purchaser, therefore, bound for the payment of specific sums at given dates, and who cannot be compelled to pay more, and has no right to expect to pay less, it must be a matter of indifference how the proceeds of that sale shall be distributed among the creditors entitled thereto. The different modes of computing interest on the debts to be paid may affect relatively the creditors themselves, giving to one class more and to the other less; but it can make no difference in the amount of the fund to be distributed arising from the proceeds of the sale. The complaint of the appellant, therefore, if he has any, must be put forward in his capacity as a creditor in respect to his rights upon distribution; but upon the view most favorable to him the distribution of the proceeds of the sale, and all questions arising thereon as between creditors, were before the court and undecided, except in the instances, already referred to, where express declarations were made in respect to the mode of computing interest upon interest in individual cases. The appellant was bound to know, and ought to have acted upon the assumption, that all possible matters of question to arise upon the distribution of the proceeds of the sale were still open for the final decision of the court. If he chose to act upon his individual judgment of what that decision would be, he acted at his peril. The decree of January 5, 1884, was such a decision, directing the mode of calculating interest upon the debt in distributing the proceeds of sale, and there is nothing in it inconsistent with any prior decision or decree of the court upon the same subject. Neither the decree of sale of May 5, 1887, nor the decree of March 1, 1882, directing the execution of the deed, and reserving a lien for the unpaid purchase money, contained any direction as to the mode of computing interest upon the debts to be paid. It cannot, therefore, be now held that the appellant has been misled to his disadvantage in having acted upon the faith of any of the previous decrees of the court in the cause.

The question, however, still recurs whether the rule for computing interest on the debts as the basis of distribution adopted by the court in its decree of January 5, 1884, is correct as matter of law. On this point there is no reason for doubt. The decree of sale, as we have already stated, contained no finding of the amount of the indebtedness, nor of the persons to whom it was owing, and no order for its payment as a condition of redeeming the property from the necessity of sale. But the report of the master of April 21, 1876, contained a full and carefully prepared detail of all the items constituting the indebtedness, with a list of the creditors, a classification according to the order of priority in the matter of lien, and a calculation of interest to October 15, 1875, upon all debts, except those embraced in class No. 1, in respect to which

special provision was subsequently made showing the total amount then due to each creditor. It is not stated anywhere in the record why the date of October 15, 1875, was selected by the master as a place of rest in the calculation of interest, but it must have been taken as the most convenient day for calculations in reference to closing the report, which evidently required considerable time for its preparation. If the calculation had been made as of the date of the decree for sale, with a view to the insertion therein of the amounts due to the several creditors, on payment of which the sale might be averted, the interest would have been brought down most properly to that date, and added to the principal, to constitute the whole sum then payable. If not paid at that time, the aggregate of principal and interest thus combined would have constituted the new principal, which, according to the uniform practice of the court, would bear interest from that date. In that case there could have been no complaint made against compounding interest. We think a similar effect must be given to the decree of the court confirming the master's report made April 28, 1876. It substantially declared the amount due October 15, 1875, as consisting of the principal sums and interest to that date, added for the purposes of the sale and distribution, and the decree of January 5, 1884, directing the calculation of interest, for purposes of distribution, upon the aggregate amount of the principal and interest as of October 15, 1875, was only a proper explanation of the decree of April 28, 1876, confirming the master's report. The date of the confirmation of that report was a suitable period in the progress of the cause, where the creditors were so numerous, and the calculations so complicated, for the court to fix, for the information and guidance of all concerned, the amount severally due to each creditor, with the order of priority in which he was entitled to be paid. The amounts to be found due necessarily embraced the principal sum, with the accrued interest up to a fixed date, and from that period the aggregate became the sum of the debt, the whole of which thenceforth properly carried interest. No exception was taken to the report, it was confirmed by the court, and, in our opinion,. it cannot reasonably bear any other construction than that which the court subsequently placed upon it. Upon the whole case, no injustice has been done the appellant; and the decree of the district court of West Virginia is affirmed.

ROBERTSON v. SICHEL.

(May 14, 1888.)

CUSTOMS DUTIES-LIABILITY OF COLLECTOR-LOSS OF GOODS ERRONEOUSLY DETAINED. Plaintiff's trunk, on her arrival at the port of New York, was examined by the custom-house officials, and erroneously decided to contain dutiable articles, and was therefore detained on the dock, in accordance with the regulations of the custom-house, until it could be sent to the public store for appraisement. Before it could be removed it was destroyed by fire. In an action against the collector of the port to recover its value, held, that defendant, being a public officer, was not chargeable with the negligence or misconduct of his subordinates in the course of their employment, in the absence of evidence that such subordinates were incompetent or were improperly selected.

In Error to the Circuit Court of the United States for the Southern District of New York.

Sol. Gen. Jenks, for plaintiff in error. Michael Jacobs and Edward Jacobs, for defendant in error.

BLATCHFORD, J. This is an action at law, brought in the city court of the city of New York, by Emilie Sichel, an infant, by Joseph Sichel, her guardian ad litem, against William H. Robertson, collector of customs for the port and collection district of New York, and removed by the defendant into the circuit court of the United States for the Southern district of New York.

The object of the suit was to recover damages for the loss of the contents of a trunk belonging to the plaintiff, who was a passenger by the steam-ship Egypt, of the Inman Line, from Liverpool, and arrived at New York, at the pier of the ship, on the 31st of January, 1883. She was 16 years of age, and was a first-cabin passenger. She made a baggage declaration, under oath, which stated that she had two trunks and two bags, containing "wearing apparel in actual use and personal effects not merchandise." She declared "nothing new or dutiable." Her baggage was examined on the dock, and one trunk was detained by the customs officers, who gave her a receipt therefor, signed by an inspector, which stated that the inspector had sent the one trunk, for appraisement, to the public store, under a baggage permit. She was directed by the officers to call, the next day, at the public store to receive the trunk. This trunk contained her personal effects, which cost her $400. The only thing in the trunk not wholly intended for her own use was 10 pounds of chocolate, valued at about $2.50, part of which she ate, and she intended to eat the balance in company with some of her young friends. This was her first visit to America. She was a native of Germany, and at the time of her arrival was unfamiliar with our language and customs. She did not know and could not understand the nature and effect of the baggage declaration which she was asked to sign, and it was not explained to her. In the trunk, with her clothing and wearing apparel, were some paper boxes containing some brass ornamental jewelry on cards, given to her abroad, of the value in all of about one dollar, some of which she had worn, some old lace curtains, six table-cloths, and twelve napkins, a gift from her mother, the ten pounds of chocolate, and three corsets, one of which she had worn. On the next day the usual order was made, on an application signed by the plaintiff, for an appraisement of the contents of the trunk. The plaintiff demanded the trunk at the public store, but did not receive it, because it had been destroyed by fire, on the pier of the ship, on the night of January 31, 1883. It was proved on the trial that, on the morning after the arrival of the ship, the deputy collector issued an order to the clerk in the collector's department at the custom-house for the appraisal of the trunk, and that there could be no appraisal without a permit from the collector. At the close of the plaintiff's case, the defendant asked the court to direct a verdict for him, on the ground that, the action being one for personal negligence, the plaintiff had not brought home to the collector personally any connection with the trunk at the time it was destroyed; and that, if any negligence was to be imputed to the subordinate officers of the customs, such negligence could not be imputed to the collector. The court refused to grant the motion, and the defendant excepted. Evidence was then introduced on the part of the defendant tending to show that the inspector on the dock who examined the trunk discovered what, in the exercise of his discretion, he determined to be dutiable articles; that he reported to his superior officer that he thought the trunk contained dutiable articles, and that officer told him to see what else he could find; that he found other dutiable articles; that he attempted to find an appraiser to appraise and assess duties upon those articles, but did not find one; that he reported to the staff officer having charge of the passengers and their baggage from that steamer, and, under his advice, marked the trunk for the public store, to be examined by the proper examiner, and have the duties assessed, under a section of the regulations for the government of oflicers of the customs under the superintendence and direction of the surveyor of the port of New York, which was admitted in evidence, and was as follows: "In the absence of the entry clerks or appraiser, dutiable articles taken from passengers' baggage will be sent by the inspector, as soon as possible, to the public store, and the passenger will be furnished by the inspector with the usual baggage certificate:" that, the trunk having been thus marked for the public

store, and a receipt given to the plaintiff, it was put into the charge of the discharging officers of the vessel; that the inspectors were allowed to send goods to the public store for appraisement only through a custom-house cartman; that the discharging officer who received the plaintiff's trunk did not send it to the store-house, because there was no cartman on the pier to take it away, and none came to do so, though an effort was made to procure one; that the trunk remained on the pier under his custody, and was totally consumed by fire on the night of the 31st of January,—the officers who were there being driven away by the flames; and that the fire occurred between 2 and 3 o'clock A. M. of the day following that of the arrival of the steamer. It also appeared in evidence that, under article 431 of the customs regulations, it was the duty of the collector, on the arrival of any steamer of a regular line from a foreign port, to detail an experienced entry clerk, who, with a similar clerk to be designated by the naval officer, and an assistant appraiser or examiner to be detailed by the appraiser, should, together with the inspector on board, examine all the passengers' baggage, place the dutiable value upon the same, and, if dutiable articles were found, appraise the same, and assess the duty thereon. It also appeared that all those officers were on the dock on that day. The following regulations were then put in evidence: "The Laws and Regulations for the Government of Officers of Customs under the Superintendence of Surveyors of Ports. 1877." "Art. 104. Whenever any trunk or package brought by a passenger as baggage contains articles subject to duty, and the value thereof exceeds $500, or if the quantity or variety of the dutiable articles is such that a proper examination, classification, or appraisement thereof cannot be made at the vessel, the trunk or package will be sent to the public store for appraisement." "Art. 117. In the absence of the entry clerk or appraiser, dutiable articles taken from passengers' baggage will be sent by the inspector, as soon as possible, to the appraiser's store, and the passenger will be furnished by the inspector with the usual baggage certificate,' which will be in the following form: Inspector's certificate of goods sent to public store under baggage permit. PORT OF 18-. On board ship. I have sent to public store under baggage permit' the following articles said to belong to -, (describe the articles.) Inspector."

6

By the government's report in this case the value of the property in Miss Sichel's trunk was alleged to be $100 only, while the plaintiff did not claim the value to be over $400. Peterson, the government inspector, did not make a written report of the case to the government until about two months after the arrival of the steamer. He did this at the request of the surveyor, and it was no part of his duty to make it as requested. The same inspector, Peterson, had signed and issued the certificate on the baggage declaration. There was an appraiser on the pier in question some time on that day. The trunk in question was the only seizure or detention of passengers' baggage made on that dock on the day in question. The defendant himself, being put upon the stand and duly sworn, testified that he was the collector of the port of New York; that he had in the neighborhood of 1,200 subordinates under him; that, approximately, the average annual importations into the port of New York, passed through the custom-house, were of the value of five hundred millions of dollars; that he knew nothing about the trunk imported by Emilie Sichel by the Egypt on January 31st, at the time of its importation; that he was not on the dock at the time; that it was no part of his duty to pay any attention to the actual arrival of the passengers' baggage, or passing it through the custom-house, or ordering it to the public store, or examining it to see if there were any dutiable goods, or to have anything to do with it; that, as a matter of fact, he had nothing to do with it; and that the first time his attention was called to the matter of this trunk was long after the fire, some time in Sep

tember, 1883. The evidence being closed, the defendant moved the court to direct a verdict in his favor upon the same grounds on which the motion was made at the close of the plaintiff's case; that is to say, that there was no evidence in the case to connect the defendant with the destruction of the trunk; that, in the case of a public officer, the doctrine of law, respondeat superior, did not apply; and that, before there could be any recovery from the public officer, it must be shown that he was personally responsible himself, and that the negligence was his own act. The court refused to grant this motion, and the defendant excepted. The defendant then requested the court to charge as follows: "(1) That a public officer is not responsible for the negligence of his subordinates. (2) That the defendant is liable only for the neglect of some duty devolved upon him personally, and not for the neglect of duty of any other person. (3) That, unless the jury find that the loss of this trunk was the direct result of some personal carelessness or negligence on the part of the defendant, there can be no recovery. (4) That it is not sufficient to show that the loss may have been the result of negligence on the part of the collector. It is necessary to show that it was. (5) That the jury cannot find a verdict in favor of the plaintiff if they find that the loss of this trunk was due to the personal negligence, or violation of statutes or regulations, on the part of the customs officers other than the defendant personally. (6) That the inspector who examined plaintiff's trunk, having found therein what he believed to be dutiable articles, was obliged to turn said trunk over to others of the officers of the customs for appraisement and assessment of duty, and until such appraisement and assessment of duty, and the payment of the duty as assessed, the plaintiff was not entitled to the possession of the trunk. (7) That the defendant is not responsible in this action for the withholding the plaintiff's trunk and its contents. (8) That if the customs officials at the vessel misinterpreted their duty, and did an act which was in law a trespass or conversion, the defendant is not responsible; he not having been present, and not having been a party to the wrong interpretation of duty acted on by the customs officers at the vessel. (9) That the defendant is not responsible for the trespasses, conversion, or other faults of his subordinates committed by them even in the line of their duty, unless he was personally a party to the same. (10) That the law, as provided in section 2652 of the Revised Statutes, made it the duty of the customs officers at the vessel by which the plaintiff's trunk was imported, to execute and carry into effect all instructions of the secretary of the treasury relative to the execution of the laws. (11) That it appears by the evidence in this case that one of the instructions by the secretary for the guidance of the officers at the vessel in which the plaintiff's trunk came, was a provision that, whenever any trunk or package brought by a passenger as baggage contains articles subject to duty, the value whereof exceeds five hundred dollars, or, if the quantity or variety of dutiable articles is such that the proper classification and examination for appraisement thereof cannot be made, the trunk or package will be sent to the public store for appraisement. (12) That this instruction of the secretary had and has the force of law for the facts in this case. (13) That the instructions devolved upon the customs officials at the vessel a discretion to determine whether the quantity and variety of the dutiable articles was such that the proper classification and examination for appraisement thereof could not be made at the vessel, and, if they determined it could not be, to send the trunk and its contents to the public store for appraisement. (14) That, in the exercise of this discretion, those officers, and the collector as their superior, are not responsible for any error of judgment in making the determination whether the quantity or variety of the dutiable articles was such, prior to sending the trunk to the public store. (15) That the officers at the vessel, and the collector as their superior, can, if at all, only be held responsible for bad faith in the exercise of the discretion thus devolved