(Oirouit Oou,rt, 8. D. New York. December 21. 1887.)
CuSTOMS' DUTIES-AoTIONSTO RECOVER PAYMENT-VALUATIONS rn DEPRECIATED CURRENCy-FAILURE TO SHOW PRODUCTION OF CONSULAR CERTIFI. CATE·
. In an action to recover an excess of duty paid on an importation valued in .<ieprecia.ted foreign curreI\cy. whereJt appears that a bon.d was given by the under. authority ofthe treasury regulations of February 1,1857, I:i 226. for the production of the consular certificate of its valuation in Spanish or United States silver ,dollars, the .plaintiff cannot. recovet if. he fails to' show was produced within the time prescribtld in said bond.
At Law. ' Action to recover back customs duties·. The ,plaintiff's firm QfF. Cousinery& Co" on March 27, 1860, by the ship:Pace, and on April 17; 18130, by the shipUnion,imported into the portQi New York from Trieste,Austria, certain This merchandise was subject to ad valorem duty , and was invoiced in preciated Austrian paper w,hich were issued and circulated under the authority of the government, and whose value was not fiXiedrb}'any law of the United ,States. Augustus Schell, the defendant's testator, as collector of customs,' converted these florins United States money&tthe rate of 48! exacted duty on the merchandjse,in question' .pasis of valuatioI}. of the. florin on the days of ita im,pQ,))wtion, Against this valua,tion the plain. th act pf February 26, 1845, (5 U. ,S. tiff's·J}rmmade protests St. at Large t 727;) claiming that the true. value ill United States money of such florin was less than48t cents, and as certifllilc;l. in f\hecertifioate oftheJJnHed States.consulatT,rieste, attached to theirin:vqices of this merchandise, and that they .entitled to recover the duty. exacted on the diflerence between· the yalue of the florin as taken at 48! cents and its value as certified by the , cqnsul. Thereafter, on April 13, 1861, plaintiff's firm brought this: su,it to recover the duty claimed by them in theirpl'otests. Thela;ws and treasury regulations ,ill force at the time .of these importationswereas 2 oUhe act of March 3,1801, (2 U. S.St. at Large, 121,) which provided .that "the invoices of all irnporte.dinto the United f?tates, and subject to a duty ad valorem, shall be made out in the CUrrel)cy of the place or country from which the im.portation shall be made," elc; sectton 61 of the actot' March 2, 1799, (1 ,q. at Large, 67jih) which· besides othl'lJ,' things, "that it shall be lawful for 'the! pl.'esident of the Vnited' States!iQ t;:ause to be established fit and proper regulations for estimating the duties on the goods, wares, and merchandise, imported into the United States in respect to which original invoice shall be exhibited in a depreciated currency issued and circulated under the authority of any foreign government;" paragraphs 216, 226,714,715, and 716 of treasury regulations, issued February 1, 1857, which provided that:
COUSINERY 'V. SCHELL.
"Where the value of the foreign currency is not fixed by any law of the United StateS', the invoice must be accompanied by a consular certificate showing its value in Spanish or United States silver dollars." "The conBul!s certificate of the value of the foreign currency in which the invoice ismllde out, when depreciated, or its value not fixed by the laws of the United States, will be according to form 224 of these regulations, and must b('attached to the invoice in a manner that will best secure it from loss or removal." "When in such case the certificate is not produced, the importer is required to give a bond to produce suchiconsular certificate, whether the irpport be SUbject not. This bond will be in the, following form, and, jf the lnerchandi&ebe dutiable, in a penal sum equal to the amount of duties assess, able tbereonj but,.if free of duty, in the ,penal sum of one hundred dollars: "(Form No. 75) "139NJ) TO PRQDUCECoNSULAR CERTIFICATE. ":BillOW: all men by these that we" are held and firmly bound unto the United States of America in the sum of - - - dollars, to be ,the 8tlttes; for payment We, bind ourselves, our heirs, execUtors, and administrators, jointly and severally, firmly by these presentl1';' sealed with our seals. dated this - - day of - - , in the ---year"of' the' independence of the said United States, and inyearofoul' Lord: one thousand eight bundred and - '- - . ,Whereas. the -......... entered ,c,ertain goqds. wares, anu merchandise, imported. by .....---.--.,. in the ship, -,-,'-,-'-, whereof---,-- is master, from '-'-,--' .· of duties charged whereon U, the ,Bum of ---,; arid 'whereas, the invoice of the said gc;1OdS,w/i'reS, and merchandise, pt'esented oli the entry therEof, was made out in a foreign currency, the value whett'of is not fixed by the laws of the Unitel1'States, and which invoice was not accompanied by acertiticate from the consul of the United States lit -,-,- aforesaid, being. the place of exportatio,n of the said goods, wares. and mercbandise, showing the value of thecurl'e.nCy Wherein the invoice was made out in United States or Spanish, silver d()llars: Now, therefore, the condition of this obligation is such that, if the above-bounden -'-'- - shall well and truly payor cause to be paid uilto the collector of customs for the district of - - - , for the time being, the sum of - , or shall produce such certificate as aforesaid within ,--'-. mpnths from the date of these presents, then the above obligation to be void; to remain in full force and virtue. , " - - - - [$eal.l' , " - - - - - - [S'eal.]" "Sealed ,and delivered in presence of - - - .
· . I ' · ·
"Invoices of 'ad valorem or free goods, when made Qut in a foreign depre· eiated, currency, a. currency the value of which is not fixt'dby the laws of the United, St,ates, whether the inmorter or owner resides in this country or abroad, m,ust in each case be accompanied by a consular certificate showing the value,6f'siich eunencyinUnited States or Spanish silver dollars, accord:' tog to the annexed fOi'm: " (Form No. 224.)
CONSULAR CERTIFICATE OF THE VALUE OF CURRENCY.
" I, B.:con$ul of the United States of America, do hereby certify that the true of. the currency of ,the kingdom of -"--, in which currency theannexetl; InvQice of Is made out, is -'-"-'- ' cents, estimatea ,in United; States or Spimish silver' dollars. [ l : l i g n e d ] "A.. B. v.34F.no.4-18
. '" Theconsular'bltlcerswlll their AlerUflcateupon the ,invoice' itself, or give such 'detaBs;J'wlmte 'it ,iB attached 81i1 a separate docu:ment, as to the names the shipperll, ,consignees., and captains, the nature; of tile merchandislj". and the total ,amoul1t'j,aswill fully,identify,:t.he invQiQeannexed. instead of giving, as heretofore, .their.certificates in suc1;lgeneral terms aSt0 admit of the deception.......whichthelib?pllrtment is,i:!lfm'm.ed bas been practiced-of substituting' another, :invoice, im place of the,ollafor wbich the certificate was originally issued." "They are alao,especiallyenjoiped,to:bbserve:great'caution in granting certificates, whereapplioation shall ·belmade forthe'same, for former,shipmentll which- \Vere unaceompanied ,by Baid I certificates, until they are fully satisfied by the corl'ootness oUhe invoices :presented, to them:for that purpose. as tlle vety'omiBsion l 'of the; tertilicates 'the invoices. at the time of entry ill in many cases presumptive evidence that a fraud was intended, if not upon the public revenue." _ ' These regulations were; held; in Dutilhv.MaxiOell, '2 Bhitchf, 541, to be the regulations 'of the presideht; ,under the aforesai(i"law of 1799)' " All, of iHe, t",9, P?rte? b! Pace, and aJl oft,he excep,t:qneofthe llnported by Union, had. theretQ;j ,prsuQsequently, prior to July 20, '1860, consulal' case.of. tbe with consulti.r certificates so -attached· or-ptoduced no refund, was made July 28jJ860, to the plaintiff's'fitrib;>fthe"Hutyexactedou the '. .'. the 48.l , In UmtEjd, State.s mo lley "aJ)9... aij, the co.n.s.uL ,Ip" case ofthe twoinvoices by PaPe, ap,d of the UP,iOIl, wh;cp were withoutcoDlmlar certificates" plliintiff'sfirm, ,according to the usual course of business at the ,requil1ed and did .. .bonds .for .the. production' of' 'such cerl'ificates,although' neitherbf such bondsnoira ,copy was pro,ducedby 't.he',plaintiff, tior .evidencegiven py nim qqhe tim!3within which were required thereby. As to the two invoiQes by ,Pace, n consular eertificatedated;'September 1:1, 1860 1 was presented to- the collector.aiter the'gi\"ingof a bond for the'pr6t'luction of the same; but it did not in any way appear that a consularcertHi6ate was ever presented in (JOlllp]j;.. the bond given in the case ofthe one invoice by the Union, or that suit was ever broughto!1 any bond. given in the caSE;l 9f eithE1!',the invoice by the Pace or by the Union; At the close of the plaintiff's Case, the defendaiit-'si counsel moved ·for Il, direction of verdict in favor of the defendaiits,bp'the grouiids, besides others:, Pitst, that there 'was Iioprobf the case'tp:ll,t firm gave bb?d r¢fluired treasur.y regulations productlon of.p., .consula,r cc\,tipRatelJ;l case of either of the two invoices by the Pace en; Q.f! one second, that if such bond was given:in the case of either of such invoices, there proofthat was ever produced, in comtha.t ,if consular certifieat? was )Jroduced In ca$e ofe,ltw;r of such mvolCes"there was no pro.<;>i tb,at ",as within the time required by the. bond given forjts prQductjqn;: .and" jou1ih, that the plaintiffs had not proven facts sufficient ·to entitle them to'¥ecOver as to either of such invoices. !,
A. W. Griswold, for plaintiff. Stephen. A. Atty., Atty., for defendant.
J" (orally.) The importer, under the statutes,1:Jad no claim
I)fqisgoods reducep. to,the. eqpi\ralerit of a depreciated currency, except in the .manner indicated at -the close .of section 61 of the act of 1799. The way there pointed out was that the president might ma:keregulations for the appraisement and valuation of goods that were invoiced or purchased in a depreciated currency-. The .'only regulations IIIflde under the authority of that section which are produced are 1heti'easuryr,regulations of 1857; and the. plaintiff must make. out a case, in the lIianrieriudicated therein, entitling him to a valuation.at the reduced:al;lrount j . before he-can recover.'rhe regulations,as read in evidence,oompriE!6 a Dumber of sections or·.adieles. All of them,eJl:oept section and :irifaot,the first pai'tofseotion226, also,.,-plainly contemp1at,e'aDd :require that a conslilar: certificate o£ depreciation. shall be attachedio. the invoice. and must accompany it, 'Dhe only provision of the ,regUlations to'whioh theplaihtiffcan point whioh reUev,e$' him from the obligation ofprod'llcing that certificate attacbed. to the inV<i>ice at the is that 'Calling for -the bond which.is provided forin section 22Ehmd Jorm 7,5.: There ilJj<in,Illyopinion, sufficient. evidence here to sb,ow that whatever bond was called for by' the regulatjons, and was asked Ifar by: the indorsement on the entry, curreI\cy bond," wasgivooj.but there istlfailure toprQve witbinwhattime that'b,ondrequil'ed,theconsu.la17certificate to be produced, and in the only casewhf:)re certificate waspl'odnced itwas so produced onlya(ter of a period, of about fiye ID00ths and 11· half. . There has, ,therefore,. been, .in 'my opinion, on the part of the 'plaintilf, a failure to prove his of pl'Oofsufficient to bring him within the provisioDs of the latter'part of'section do not mean: now topassconcJusively: on that assuming that tbegiving of the bond and the s\lb'.8l1quent ptoductionpfthe,certifi<late wumin: the time by the bond, wOllld be sufficient. to elltitle him toa,l'cfund,where be had. paid the duties before the certUicaw waf:; produced. I shall therefore direct a verdict f()f the detendallt.
(Circuit Court. .
Neither the pauper's oath, of an infant plaintiff nor that of his ne-tt friend can entitle them to sue without security for costs.
IN FORMA PAUPERIS.
At.Law. ' Ex parte 'application by an infant to sue in forma pauperis. O. P.,Lylea, for the motion.
, , , Ii
This is an ex parte a.pplication.by an infant sue in forrna pauperis. He :isa citizen of Arkansas, and his declaration, presented with his application, alleges' that. he was personally. injurW by the negligence of the defendant company', while:travelingas a passenger on its train.' He accompanies hill application with an oath of his own poverty,and also the 'oath ,of his next friend' as ro ¥s 'poverty;likewise; he presents a certificate of a good; cause of action ,hy a reputable at. torney,ll$ required by our1ruling in Bradford v; Bradford,'2 Flip. 280· .It is thoroughly well·settled in 'rennessee,even under the Jiberalstat. utes of 0111' state.· that ari infant)Jlaintiff :cannotsoe,in forma. ptW;PW; Mill. & V.Code,§§ 3912, 3913j,Thomp.& S.Code,§3192j Green v. Harrison,3Sneed.131j Broolcsv. Workman, 10 Heisk. 430; Rail;, road 00., 7 Lea, 717; Sharerv. Gill, 6 Lea; 495;' . We held Bradford,supm, for sufficient reasons, that the Tennessee statute was not binding on the federal court. Not because the state practice is not bindat ing on us, but becaufle, ae: we thought, it is not a question of all, but a statutory privilege or right conferred upon a party,which was limited in legislative authority to the state courts-the right, namely, of the party to determine for himself the fact of his poverty, and that he had a reasonable cause of a6tion. Outside, the' statute, those were mat. ters of judicial determination by the court, and we thought the. legisla. tureof'thestateco1l1d not deprive the federal cohrts' of the right. to determine for themselves the facts of the case, or prollcribe for theililia statutory tule of judgment. . It is now insisted' that :under that decision the above·citedcases are notbinding on us, ,and that'tHe plaintif!hasthjJ right to sue in this court in forma pauperis. At common law no plaintiff had any such right, it being a purely statutory privilege. But here. costs and fees must not be confounded, for at common law no such thing as costs was known, the right to them being likewise a statutory priv· ilege; that is to say, the right of a party to the suit, either plaintiff or defendant, to recover, if prevailing in the suit, the expenses of his own side of the litigation, was unknown to the common law. So, too, the right to demand security for those costs after the statute of Gloucester (6 Edw. 1. c. 1) was unknown to the English law, except in two cases -First, where a prochein ami was suing in behalf of an infant he was required to give security for costs; and, secondly, if the plaintiff resided, or waS about to go out of the jurisdiction. At common law, indeed,