it is sufficient to say that no such custom is pleaded, nor is there any evidence tending to prove defendant's knowledge of it, or that it is a well-known usage or custom. In order to have "commercial usage take the place of general law, it must be so nniformly acquiesced in, and for such a length of time, that the jury will feel themselves constrained to find that it entered into the minds of the parties and formed a part of the contract." Lyon v. Oulbertson, 83 Ill. 37. The plaintiffs have failed to sustain their action, and judgment will be for defendant, and his costs expended therein.
IRON CO. v.
and others, Ex'ra.
(Oil'cuit Oourt, S. D. New York. April 30. 1883.)
OUSTOMS DUTIRS-BOXES OF
different kinds, and of diiIerent value, and one box of each kind, being four boxes in all, were designated by the collector for examIllation anu appraisal, and on apprai<al increased duties and a penalty were imposed. PlaintiiI paid the pellldty and increased duties under protest, and brought suit to recover lhe amount, Held, that the act of August 30, §§ 16, 17,21, under which the appraisal was made, required one III every ten boxes to be examined and appraised, !lnd that no waiver of the statute being shown, the increased duties and ptmalty imposed WlJre illegal, and that plaintiff was entitled to l'ccover.
AUGUST 30, 1842. Plaintiff imported in 1853, from Liverpool, 1,300 boxes of tin plates of foul'
At Law. A. W. Griswold, for plaint.i:IT. II. R. Wilson, Asst. Dist. Atty., for defendants. SHIPMAN, J. The case shows tbat in 1853 the Ystalifera Iron Company, of Swansea, Wales, consigned, for its account and upon its risk, to Naylor & Co., of the city of New York, 1,300 boxes of tin and teme plates manufactured and owned by said iron company. Said goods were Bent by way of Liverpool, and arrived by the ship Siddons about August 29, 1853. The invoice and entry contained four different kinds or brands, of different values, viz., 600 boxes teme plates, marked I U; 333 boxes, I C, tin plates; 137 boxes, I X, tin plates; and 230 boxes, W I C, tin plates. The invoice was presented for entry at the custom-house on August 29, 1853. The dutiable value was estimated upon the invoice valuation, being the value at the time and place of the manufacture of tile goods, at $8,133.14, and the dutie.s thoreon were properly estimated to amount to $] ,219.95, which were paid by Naylor & Co., without protest, on September 3, 1853. One box. only of each Or brand of the importation, being four bo:n'ls in all, were designated by the collector for examination audapr'raisal, and wete removed to the public stores. A penal given to the collector, as provided in section 4 redelivery bond
l'STALIFERA IaON 00. 'V. REDFIELD.
of the act of May 28, 1830, (4 SL at Large, 410,) a permit for 1,2% boxes was given to Naylor & Co., and they received these boxes between September 10,1853, and October 1, 1853. The invoice valuation was raised more than 10 per cent. by the government appraiser on September 12, 1853. Upon appeal by the consignees there was a reappraisement, on September 14, 1853, by a merchant appraist:r and the general appraiser. The former took the oath required by law, and examined only two or three of the sample boxes which were in the public stores. 'fhe general appraiser examined no more tlWll the four sample boxes. The two differed in their appraisal, the merchant appraiser increasing the invoice value somewhat, but less than 10 per cent., and the general appraiser adhering to the previous ap· pralsal. 'I' he collector decided in favor of the appraisement of the general appraiser. The reap praisers appraised at Liverpool, without reference to Swansea, prices, and founded ·their opinion UpOll Liverpool prices current. The merchant appraiser deducted from the quotations in the circulars, because the value of the Ystalifera goods at Liverpool was less than that which was given as the ordinary market price. The increased duties in consequence of this appraisal were an additional duty of $140.70, and a penalty of $575, which were paid by the consignees on December 8, 1854, under and' after written protest distinctly and specifically setting forth the grounds of objection to the payment of the duties, and under compulsion, partly in order to get the four boxes of plates upon which the duties were imposed, which were still in the public stores, and especially to prevent a permanent refusal by the custom-house officials to receive the bonds of their firm. 'I'here was no evidence of the waiver of the statutory requirement that one package in every ten packages in an invoice should be examined and appraised. 'l'he decision by the reappraisers of the question what markets of the country from which the goods have been imported are the principal ones for the goods in controversy, and their appnl,isal, made in accordance with the examination which is required by statute, are final. But the statute (act Aug. 30, 1842, 5 St. at Large, 563-565, H 16,17,21) required that one package in every ten packages of the merchandise to be appraised !?lust be designated by the collector and must be examined, and there must be, in substance and effect, a faithful personal examination by the reappraisers of the number of packages which are required to be examined and appraised, or such an examination of the samples drawn from such packages as is equivalent to an examination of tue packages themseh'es. If such examination is not had, the reappraisal is invalid, and the excess of duty or the penalty that is imposed by reason of any incI'eased valuations above those stated in the invoice is illegally imposed. Greely v. Thompson, 10 How. 225; Greely's Adm'r v. 18 How. 41a; Burgess v. Converse, 2 Curt. C. C. 216; Stai1's v. Peaslee, 18 How. 521; BcZcher v. Linn, 24 How. 508. If a faithful was
not had of the number of packages which the statute required to be examined, or of the samples from such number of packages, there was no power in the reappraisers to make an appraisal. In this case but four packages, being one only of each of the four differentbrands of plates, and the aggregate number of packages being 1,300, were sent to the public stores for examination, and were examined. Any examination of such packages only must be inadequate, unless further examination is waived. The illegality is sufficiently pointed out in the twenty-seventh ground of protest, taken in connection with the sixteenth ground. No objection was taken by the defendants to any defect in the protest. Let judgment be entered upon the verdict for $715.70, with interest from December 8, 1854.
and others v.
(Circuit Court, S.D. New York.
CUSTOMS DUTIES-BEANS-AcT OF MARCH
3, 1883. All ordinary beans are subject to a duty of 10 per cent. 22 St. at Large, 488, 517,520.
SAME-VERDICT-MISTAKE AS TO AMOUNT.
In an action to recover excessive duties, where the jury, by mistake in calculating the amount of duties illegally exacted, render II verdict for too large an amount, such verdict may be sustained on remitting the excess, and a new trial refused.
At Law. Henry E. T1'emaine, for plaintiffs. Sam'l B. Clarke, for defendant. WHEE;LER, J. This is a suit to recover back duties exacted under the act of March 3, 1883, (22 St. at Large, 488,) upon importations of beans. Under this act, drugs, barks, beans, etc., not edible and in a crude state, (517,) and plants, trees, shrubs, and vines of all kinds not otherwise provided for, and seeds of all kinds, except medicinal seeds, not specially enumerated or provided for, (520,) are free; and. vegetables, in their natural state, or in salt or brine, not specially enumerated or provided for, are, in Schedule G, under the head of provisions, made subject to a duty of 10 per centum, (504;) and garden seeds, except seed of the sugar beet, are made eubject to a duty of 20 per centum. A duty of 20 per centum as for garden seeds was exacted. The importers protested that the beans were free as to a duty of 10 per centum only. The jury, under seeds, or instructions, found that the beans were neither garden seeds, nor seeds in the sense of the statute, and returned a verdict for the excess above 10 per centum. The principal question now is as to the correctne8£' of this finding.