into the treasury shall be forfeited, unless the payment be made under protest. The act of 1845 is a remedial statute, and is to be construed liberally, as preliminary to a remedy against the officer, and through him against the government.

In no case has a court determined the legality of the collector's acts by the protest, but, in every case cited, by the statute.

Instructions.-By the act of 1799, sec. 111, (1 Stat. at Large, 704,) it was provided that the officers of the Department of the Treasury may prescribe additions to the forms provided in that act, for the better collection and payment of duties: "Provided, however, that it shall not be competent for the said officers to prescribe any forms or regulations incompatible with, or contravening the special provisions of this act.' The act of 1799, in many of its provisions, is still in force for collecting the revenue.

If, in the execution of the law, the treasury erred in its constructions, and required the collectors of the revenue to take more duty than the law imposed, usually it corrected such error, when found out by judicial decisions or otherwise, by a new circular. We might cite a number of erroneous instructions, and instructions to correct the same; one or two may suffice.

By general instructions, dated November 25, 1846, (1 Mayo,) collectors were directed to collect duties upon the quantities of merchandise stated in the invoice, and not upon the quantity returned by the weigher or gauger; if such weigher's or gauger's report showed a deficiency in the quantity stated in the invoice, the instructions were as follows, viz:

"But in no case are the duties to be levied on an amount less than the invoice value."

The United States Supreme Court having decided, in the case of Brune vs. Marriott, (9 Howard, 619,) that the duty was imposed, not upon the quantity as specified in the invoice, but as shown in the return of the weighers or gaugers, the treasury, on the 5th July, 1850, (1 Mayo, addenda, 39,) instructed the collectors of the customs to admit sugar and molasses to entry, and collect the duty in compliance with the decision of the United States Supreme Court, in the case of Brune vs. Marriott, (1 Mayo, 39.)

And by another instruction, dated August 10, 1850, (1 Mayo, addenda, 41,) the treasury directed that the errors which had been made under the instructions of November 25, 1846, on imports of sugar and molasses, should be corrected, and the excess of duty exacted illegally, as determined in the suit of Brune vs. Marriott, should be refunded. And under instructions of August 10, aforesaid, a large amount of money has been refunded.

The tariff act of 1832 imposed a less rate of duty on some articles of import than the same were liable to pay under the prior acts; and it was provided by the 18th section, (4 Stat. at Large, 594,) that such imports might be placed in the custody of the collector, and the duties re-adjusted, and the difference in duty refunded. And by the same section, the Secretary of the Treasury was authorized "to prescribe such rules and regulations as may be necessary to carry this section into effect."

And the difference in the duties was adjusted and refunded under instructions of the Comptroller of the Treasury, dated March 7, 1833. And under the same circular, discriminating duties of tonnage on Mexican vessels were refunded.

In treasury circular, dated March 13, 1834, addressed to collectors of the customs, the Comptroller said: "It has been noticed that some of the collectors are in the habit of crediting duties on merchandise in one quarter, the returns in relation to which, by the weighers, gaugers, or measurers, are not forwarded until a subsequent quarter.'

* * * "It is requested that in future the returns of the weighers, gaugers, and measurers, be transmitted with the accounts in which the duties are regulated with reference to those returns.'

Again, in the Comptroller's circular of September 13, 1836, as follows: "The abstract you are to render of the duties which may be refunded by you may be stated in a similar form with that subjoined to the circular of the 18th February, 1834; instead of amount to be refunded,' say, 'amount refunded;' and then add a column, headed 'to whom refunded.'" These extracts are cited to show that the collectors, under instructions of the Treasury Department, corrected errors, and refunded duties collected in excess without requiring any protest, or judicial decision. And for further evidence as to the refunding of duties, see the circulars cited by the brief of the petitioners in case (No. 65) of Sturges, Bennet & Co.

By the tariff act of 1842, sec. 24, (5 Stat. at Large, 566,) it was enacted, "that it shall be the duty of all collectors, and other officers of the customs, to execute and carry into effect all instructions of the Secretary of the Treasury relative to the execution of the revenue laws."

If the Secretary errs, and issues instructions which cause more duty to be collected than the law required to be paid, he will certainly be authorized to correct his instructions, and the errors and illegalities caused thereby.

It will hardly be contended that the Secretary can, by a circular, collect money contrary to law, and be unable, and under no obligation, to withdraw such circular, and correct the errors of his officers which may have been caused thereby.

"In case of an erroneous settlement, a bill in equity would lie to surcharge and falsify, as in the case of a settled account between individuals. If even at law, though the settled account would be prima facie evidence, might not the true balance be recovered upon proving mistakes and omissions?" (Ex-parte Randolph, 2 Brockenborough, C. C. R. 447; Perkins vs. Hart, 11 Wheat, 237.)

It is contended in the briefs of the United States solicitor, upon motives of public convenience or expediency, that, "if these claims are countenanced it will lead to mischievous consequences, and engender a vicious system of speculation on the government and people.

We answer in the words of Lord Loughborough, in the case of Arkwright vs. Nightingale, Davi's patent cases, 56: "It is said it is highly expedient for the public, that this patent, having been so long in use, after Mr. Arkwright had failed in that trial, should continue to be open; but nothing could be more essentially mischievous than that questions of property between A and B should ever be permitted

to be decided upon considerations of public convenience or expediency. The only question that can be agitated in Westminster Hall is, which of the two parties, in law or justice, ought to recover?"

The constitution provides that Congress shall have power to lay and collect taxes, duties, imposts, and excises, and that all duties, imposts, and excises shall be uniform throughout the United States; and that no person shall be deprived of property without due process of law. There is not, and cannot be, any legal rule whereby duties shall be uniform, but the statutes made for the purpose.

The oath prescribed by the act of 1823, sec. 4, (3 Stat. at Large, 730,) to be administered by the collector to the importer on his making entry of imports, requires the importer to promise as follows, viz: "That nothing has been on my part, nor to my knowledge on the part of any other person, concealed or suppressed, whereby the United States may be defrauded of any part of the duty lawfully due on the said goods, wares, and merchandise; and that if, at any time hereafter, I discover any error in the said invoice, or in the account now rendered of said goods, wares, and merchandise, or receive any other invoice of the same, I will immediately make the same known to the collector of this district." And the act of 1842, sec. 21, (5 Stat. at Large, 565,) is in the words following, viz: "And if any package be found by the appraisers to contain any article not specified in the invoice, [and no fraudulent intent appear,] then the value of such article shall be added to the entry, and the duties thereon paid accordingly, and the same shall be delivered to the importer: * * Provided, That if, on the opening of any package or packages of goods, a deficiency of any article shall be found, on examination by the appraisers, the same shall be certified to the collector on the invoice, and an allowance for the same be made in estimating the duties." These provisions of law amount to a solemn promise and contract between the government and the importer, that all errors which may arise in collecting and paying duties shall be corrected without limit of time, "at any time thereafter."

Again There is an implied promise, on the part of the United States, proffered to all importers, citizens, and foreign merchants, made in the tariff act of 1846, (9 Stat. at Large, 42,) that foreign imports shall be admitted into the United States, and delivered to importers to be sold for consumption, upon the payment of the duties imposed by that act; and that the goods, wares, and merchandise, mentioned in Schedule I, shall be exempt from duty.

Again: There is a like promise proffered to all importers, resident and foreign, by the act to establish a warehousing system, (9 Stat. at Large, 53,) that they shall be permitted to enter their imports, to be deposited in the public stores, there to be kept with due and reasonable care, at the charge and risk of the owner; and the collector, on an entry to re-export the same, shall permit the said imports to be re-shipped without the payment of any duties thereon. In the case of the petitioners, Spence and Reid, a penalty was exacted on goods warehoused and exported. As well might a penalty be exacted on the free goods mentioned in Schedule I.

By the act of importing foreign imports, the importer accepts the offer made by the government, and thereupon arises a contract to pay Rep. C. C. 36-2

and receive that specific certain sum of money for duties which is imposed by the act of 1846, or to export the merchandise without the payment of duty, as the case may be, binding alike on both parties. The collector is not a party to the contract; his duty is to see that each party do and perform according to contract.

A protest cannot strengthen the law or the contract; the want of one cannot repeal the law nor make void the contract.

If the collector, as collector, exacts more than the law and contract require, it is extortion. And when the government is requested to correct the error and refund the money, the answer of the treasury officer should be, "show me an appropriation and I will pay you the money." But for an officer, sworn to execute the laws, having an appropriation, to refuse to refund, and plead in justification of his refusal the want of a protest, is disgraceful; he adds to extortion insult. The Supreme Court, in the case of the United States vs. Nourse, (9 Peters, 8,) said: "It would excite some surprise, if, in a government of laws and of principle, furnished with a department whose duty is to decide questions of right, not only between individuals, but between the government and individuals, a ministerial officer might, at his discretion, issue this powerful process, and levy on the person, lands, and chattels of the debtor any sum he might believe to be due, leaving that debtor no remedy, no appeal to the laws of his country, if he should believe the claim to be unjust. But this anomaly does not exist; this imputation cannot be cast on the legislature of the United States."

Congress, by an act approved February 24, 1855, established a court, to be called a Court of Claims, to hear and determine all claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States, which may be suggested to it by petition filed therein, and report to Congress the cases upon which they shall have finally acted, with a bill, in those cases which shall have received a favorable decision thereof, in such form as, if enacted, will carry the same into effect. Which act, being remedial and for the redressing of injuries suffered by citizens, is to be construed liberally, and so as will redress such injuries.

We aver that the petitioners above named, in their petitions filed in this honorable court, do show that they have claims founded upon laws of Congress, regulations of the Treasury Department, and upon contract; and upon the authority of the acts, decisions of courts, and elementary principles above cited, we contend, that, in all cases where a greater amount of money than the law imposed has been demanded by collectors of the customs, as for duties due to the United States upon imports, and paid by the petitioners in order to obtain possession of said imports, the petitioners are entitled to redress; and we pray this honorable court to grant unto each of them such a judgment and other relief, by bill or otherwise, as in the judgment of this honorable court they may be legally entitled to, in order that the money illegally exacted of them may be refunded.

CHARLES E. SHERMAN,

JOHN ELY,

Counsel for Petitioners.

JAMES BEATTY'S EXECUTOR vs. THE UNITED STATES.¡

The opinion of the court was delivered by Judge Scarburgh. James Beatty, late a merchant of the city of Baltimore, imported from Calcutta, into Baltimore, in January, 1845, by the barque Active, 3,197 bags of saltpetre, usually denominated crude saltpetre, and made due entry of the same for consumption, at the collector's office; and in his entry he erroneously, and by mistake, and for want of a knowledge of its character, described 2,197 bags thereof as " partially refined saltpetre," and 1,000 bags as "crude saltpetre," and free from duty, when the entire importation was "crude saltpetre." The entire importation was reported by the revenue officers as saltpetre partially refined," and a duty thereon, at the rate of of one cent per pound, amounting to $1,548 52, was exacted of the importer and paid by him. So much of the duty as was exacted on the 1,000 bags-amounting to $461 11-was paid under protest, and subsequently recovered in an action instituted by the importer against the collector.

par

The petitioner alleges, that the whole importation was "crude saltpetre;" that there is no such thing known in commerce as tially refined saltpetre ;" and that, in the commercial sense, all saltpetre is included under two denominations: "refined saltpetre," and crude saltpetre."

We are obliged, at the present stage of this case, to assume that these allegations are true. The rule is well settled, that the denomination of articles in tariff laws is to be construed according to the commercial understanding of the terms used; and that, whether the imported article is or is not known in commerce by the words or terms used in the tariff law, is a question of fact, and not of law. (United States vs. 112 casks of sugar, 8 Peters' R., 277; Elliott vs. Swartwout, 10 Peters, 151, 153; United States vs. Breed, 1 Sumner R., 164; two hundred chests of tea, 9 Wheaton R., 430; Curtis vs. Martin, 3 How. R., 106; Lawrence vs. Allen, 7 How. R., 785, 796–7.)

We also assume that, if there be any case to which the statute law concerning protests is fully applicable, this is such case. As, therefore, no protest was made quoad the subject now claimed, the question is directly presented for the consideration of this court, whether the want of the protest is conclusive against the petitioners.

In order to present an intelligible view of this question, it is proper to consider it (1,) as if the acts of Congress of March 3, A. D. 1839, and February 26, A. D. 1845, had not been passed; and then (2,) to inquire how far it is affected by those acts.

(1.) First, then, what would be the rights of the petitioner if the acts of 1839 and 1845 had not been passed?

There can be no doubt, taking, as we must for the present, the allegations of the petitioner to be true, that the money now claimed was paid to the United States by James Beatty, upon the supposition that the saltpetre entered "as partially refined saltpetre," was partially refined saltpetre;" that in fact it was "crude saltpetre;" that, being "crude saltpetre, it was, under the act of 1842, free from