IN BE WYMAN.
pro fine as well as by an execution against his property, it can now recover on this bond. Section 1041, Rev. St. The penalty declared under section 3279 of the internal revenue laws could have been recovered in a civil action, (see section 3213,}and in that event we presume the penalty could have been enforced against the property of Thompson only, and not by a capias pro fine; but we do not think such a judgment could be enforced by a suit on the bond, if a judgment under an indictment could not be. The difference in enforcing the judgments in these two proceedings can make no difference inthe question of liabilityon the bond. The inquiry in each case is the fine or penalty covered by the bond. The bond provides that if Thompson "shall pay all penalties incurred or fines imposed on him, * * * then this obligation shall be void; otherwise it shall remain in full force." The only limitation is that the penalties incurred or fines imposed on him shall be for a violation of a provision of law in relation to his duty and business 3S a distiller at the place designated in the bond. It may be claimed that the "penalties incurred or the fines imposed" are only those which may be declared by a court in a suit on the bond in which the sureties have a right to appear imd contest, but such a contention is answered by the language of the bond., The bond is a guaranty of the principal's conduct, and an obligation that they shall pay all penalties incurred or fines imposed. The fines must be imposed, and a non-payment by the principals, before the sureties are liable on the bond. I do not see why, upon general principles, the defendants are not bound on their bond. The .demurrer should be overruled, and it is so ordered.
(cCrcutt Court. E. D. Missouri, E. D. March 7,1891.)
.cUSTOMS DUTIEs-APPEAL lI'ROH ApPRA.ISEMENT.
The administrative customs law of June 10, 11190. (26 St. 187, 188.) § 14. provides for an appeal from the decision of the collector of the port of entry as to the rate and amount of duties to the board of general appraisers in New York, or to lIomt;l other board constituted by the secretary of the treasury at some other port than New York. Section 15 provides that either party. if dissatisfied with the decision of the appraisers, may within .so days aPPlY to the circuit court in the dilltrict in which the matter arises for a review of the questions of law and fact. Held, that the jurisdiction here indicated is vested in the circuit court for the district where the port, of entry is situated, and DOt in that of the district wht;lre tht;lboard ,of appraisers meets.
At Law. This is aproceeding under the fourteenth and fifteenth sections oithe "AdminIstrative Customs Law," approved June 10, 1890, viM 26 St. U·. S.137, 138. Petitioners filed in this cQ,urt,.on January 19, 1891, application"as contemplated by the fifteenth section of the act, for a review, a decision of the board of general appraisers sitting in New York, con<cerning the rate of duty on certain breech and muzzle loading guns/there-
into this QOl,mtry by the petiti9ners. The that.the fire-arms were at the port of St. Louis, M',o.; that the duties thereon the collector of said port, afterwards,to-wit, on ()ctober23,,1890,the same were duly that the petitioners, being dissatisfied with the rate of duty assessed,. thereafter, on November 1, 1890, gave written notice to the co]· lector.Qftheir dissatisfaction, and the rea,sons therefor,as, contemplated by sectiQP14 of the act, whereupon the collector transmitted all the papers,jnvolces, and e:xhibits to the board of general appraisers at New York, ",,11.0 on December 20, 1890, affirmed the decision of the collector. The application also contains a stateJI]ent of the errors of law and fact complained of in the decision of the board of general appraisers, and a judgment against the United States fqr the e:xcessive duties prays imposed, as well as for a review of questions of law and fact involved in the decision· . RaweU cfcFerri88, for petitioners. Geo. D. Reynolds, U. S. Dist. Atty.
(after Btatingthefact8 a8 above.) The question now before the court is whether it should grant a preliminary order directing the board ofappraisers to return to th is court" the record and evidence taken by them" togeth,er with a. certified statement of the factf;! involved in the case, and their decision tliiereon," as by section 15 of the Petitioners, move for s,uch an order,and the district attorney resists the motion, on'the ground that this court has no jurisdiction of the.case, and consequently no authority to make the order. I am satisfied that the objection taken to the jurisdiction is not tenable. By the fourteenth section of the act, it is made the duty of the collector of the port where merchandise is entered to decide, in the first instance, "as to the rate and amount of duties chargeable thereon, * * * including all dutiable costs and charges, and as to all fees and exactions;" and his decision is final unless it is objected to by the importer, consignee, or dgent, and unless notice of the objection is given to the collec,tor in writing within 10 <lays after the duties are liqUidated. If such notice is givell,.and the duties as asseseed by the collector are paid, it then becomes the collector's duty to transmit the papers to the board ofgeneral apPJ:81sers constantly in session in New York,or to some other board <.'onsisting ofthree general appraisers, which may have been conIltituted by the secretary of the treasury.at some port than New York. The proceeding thus contemplated is in the'natttre of an appeal by the importer or consignee from the decision of the collector as to the rate of duty, to a genera) board consisting of three appraisers, sitting. at .:. 15 f()llows: ','1/11/1 1/1 Inhel/l . ,importer"consignee, ()fagent, 1/1 ... ... or thecolleetor or of the trt'asury; shall be dissatistled with the decislono! the board cit general appraisers ... 'It * as to the construction ot'the litw anl1tha facts respecting the elalllliflcation of such merchandise, and the rate of dllty imposed thereon under such c1assHicallon, they; or either of them, thirty days after such decision, ... 1/1. 'It 8pplyto the circuit
IN RE FITTON. "
court of the United States' withih the'district ill' which the matter arises for a review of the questibns"of' involved in such decision." Now "the matter" referred to in this clause of the section is evidently the controversy between the importer, on the one hand,and the government, represented by the collector, on the otber, as to' the rate of duty; and that controversy arises at the port where the merchan,diseis entered and the duties are liquidated. It is a matter or controversy that arises as soon as the importer takes exception to the rate ,of duty assessed by the collector, and notifies him ill writing of the nature of.his objections, required by section 14. The proceeding before the board of general before the appraisers is merely a continuation of the controversy ()QIlector aUhe port of entry. When the notice is given to the collector, the controversy or "matter arises" within the meaning QHhe statute, and the circuit court of"the United States for the district irlwhich the port is situated, where the merchandise is entered ap.dthe duties are liquidated has jurisdiction to review the the, d,ecisiop, of the, board ofappraisets subsequently made in such controversy. The contention of the governrnent thatthe United Sta,tes circuit court for the district where the hoard of appraisers meets and ren<1ersits decision alone has jurisdi,ction to review the decision of the board dQj3fjl not seem to me to be justified by any of the provisions of the act. If it had been the intention of congress to thus limit the trialor all of such cases would no doubt have been to one or two circuit courts, the more clearly expressed. The Illation for an order upon the hoard:ofap.praisers to make a, return of the record and evidence will be sUtitained, and such orderwiU be entered.
(C1Iroutt Court,;D. Vermont. February 12,1891.) 1.
EXTRADITION--DIPFERENT OFFENSE-HABEAS CORPUS.
Where a requisition for a fugitive was based on an affidaVit charging larceny, made before a notary pubUc,. in,stead of·before a magistrate, as required by Rev. Idt. U. S. § 5278. and for that reason the governor refused to issue his warrant, and the accused, when told that the defect was merely formal, and would be corrected. though not iuformed of the governor's refusal of the warraut, waived the defect iu writing'. and consented to go at once, stipulating that he was oI;lly to be taken upon the charge hlrceny, and nothing else. he ,is entitled to release on habeas 'corpus from a subsequent arrest upon thecbarge of forgery, and has the same rights as if he. had been delivered up by the.l!'overnor·. and he cannot be proceeded against on any charge 'Otber than that for which he was extradited until opportunity has been given him to'return to the state from which he was extradited.
As a reqUisition for a fugitive from rests altogether on the constitution and laws of the'United States, ,a questIon as to the validity of the arrest and, im· prisonment of the accllsed on the charge of a di1ferent o1fense than .that for which he was extradited is withih toe provisions of Rev. St. U. S. § 753. giving federal courts jurisdiction to issue writs ,of ,habeas oorpus. ' I Where an extra?itedpri80ner who is out is arrested on a di1ferent charge than that for WhICh he was extradited, tile court" in granting a writ of 'IWb'eat
TO RETURN., , , : .. ,. , '
8.' SAME-Pa0'1tE0'l;,IOIf A.ND