741 consideration of the bill of exceptions' was the motion for a new trial was decided,because thatmotionmighi M've been granted, when the exceptions would· fail, as anew trial wolIid' take place. The course of proceedings in this case shOws the 'l'llldjustice of the rule that it is the term at which judgment is rendered, rather than the term at which the trial was had, that a bill of exceptions must be signed. For these reasons, I shall hold that the bill of exceptions in this dtse; filed by the defendants with the clerk, is properly before the court.
GORDON
et al. v. MAGONt,
(Oircuit OlrUrl, S. D. New Yoric. December II, lSS9.)
L
CO'STOlIfB DUTIES-ApPRAISEMENT-FoREIGN MONEY-8HANGHAI TAELS.
:a.
Small masses of silver, 1I0t always uniform in size, nor regular in shape, but ClODforming generally ro an oval' shape like that 0'1 8 bat turned upside dowll t or of a Chinese shae. marked by an officer selected, by the consensus of Chinese Dankel'll with characters Indicating tbe fineness. and the number of taels, or the weight of the silver therein, and circulated in China as the only moneyot accouIit, are coins of China; and the value of a tael of the same is a J?roper subject of annual estimation by' the direcror of the mint, and of proclamation on the 1st day of January by tile seoretaryof the treasury, within the of seotion,S5M, Rev. St..'U. S. If tbevalue af a fareigncain be estimated by, the directOr oithe mint upon the basiilused by him in estimating the values of other foreign coins'of the. same' metal, proclaimed by the secretary of the treasury on the 1st day'ofJanuary'of any year and be proolaimed by the ,Secretary of the tre$Sury during a SUbsequent month' of the same year. the direcror,jn the absence ,allY proof ro the contrary, will be presumedro have performedlusdentire duty, and rohave made, such estimation of th!l, value of such foreign ooin at tlJetime required by said sootion8564, and,theproolamatiOIl. such SUbSElQJlelltmonth, by the secretary of th'e treasury of its value' SO estimated, 1S l10 comlllianqe by him with the requiremeDts of that seotiOI1> ; ", ' '
BAlIE-PRbciAMATION AS TO VALUE.
At Aciion to recover back duties: The plaintiffs made one importation August 28, and another September 21, 1886, intb the port of New York, from Shanghai, China, of certain dressed furs, which were invoiced' in taels. The fendant, 8S collector of customs at that port, pursuant to the decision of' the treasury department, (S. 6839,) made April 3, 1885, converted the taals at the rate of $1.175 ,each into money of accouht of the United' States; and on August 28 and September 22, 1886, respectively, the duties in, the case of these importations, as estimated by the 'proper officers, at the legal rate thertlof, on the' amounts' of such "money so obtained;were paid by the plaihtiffs to the defendant as such collector. On J anuary 31 and February'l, 1887,respectively, the duties in the of these importations 'WElre-liquidated. by the. proper officers at th'J same' amounts as tha estimated amounts. THereafter, within the time ra-; quired by law, theplairttiffsprotested against the exaction of duties on' the.se amounts, claiming thatduty should }:lave been eo ·obtained' by oonverting thesetaels iiito money of account' of the' United States,at thEf rMe of$1. 1094 'each; and,having made a.ppeals J
Law.
748 I " ..,
FEDERAL
REPORTER.
vol. 40.
}Vhichwere decided adversely to them, brought this suit to recover the duties exacted. on the difference between the amounts of money of account of the United States obtained by converting into the same these taels at the rate of 81.175, and the amounts of such money to be obtained by converting into the same these taels at the rate of 1.1094 each. Section 3564, Rev. St. U. S., provides that "the value of foreign coin, as expressed in the money of account of the United States, shall be that of . the pure metal of such coin of standard value; and the value of the standard coins in circulation of the various nations of the world shall be estimated annually by the director of the mint, and be proclaimed on 'the 1st day of January by the secretary of the treasury." On the trial, the plaintiffs, to establish that the value of these taels was as claimed by them irl their protest, ,put in eyidence a treasury circular which was issued between the dates of the importations in snit and the dates 9f tbeJiquidlftipn of the duties paid thereon, and of which the following is a copy:· , "OmOULAR. " of the "1886·.Department No. 144., DiVisionofCustoms. "TREASURY DEPA'RTMENT, OF,JrIOE OF THE SEORETARY. . "WASHINGTON, D. C., October 16. 1886· . "To Collector of customs and Other.,: UMer the decision dated, April 3, 6839.) the value pf the Shanghai tael forcu,stom-house purIIO'Ses was fiJ(,ed; by the advIce olthe of the mint, at $1.17 5-10. The of the mint noW reports that. upon the basis used in estimating the value of foreign silver coins specified in the circular of January 1.1l:l86. the value oHhe Shanghaitaelwould be $1.1094. This valliet$1.1094) should be allopted·. therefore. custom-house officers for the tael mentioned. in cases of importations or Withdrawals made after the date these instructions. and the value ·heretofore attached to other Chinese taals will' be reduced in the same proportion. C. S. F AIROHILD. Secreta,ry." the testimony of the defendant's witnesses that the tael was.566 grains, or about an ounce and one-third, of silver; of, was a large lutup, and onetaelwasa small lump, Qfsilverj thateaph of the.<le lumps of silver was oval,,,shaped,-shaped f$Qmewhat a hf!,t turned upside down, or like a Chinese shoe, and tl),at t?ese lqmps of silver had st!!-mped or written thew. ()D, qn a pIece of paper pasted thereon, marks or characters ,fineness of, the silver, and the weight or number oftaels! thereof; ,that these were so pU,t on by whakwas ,the office,. was appointed, by the consent and: q(, tpF, Chinese of the Chinese meni, tpqugb It \VRsnot a regular goveJ1qment .offlce;that: as WItnesses: U;;tper.stpodd,nyprivate person could,; melt up a lu:tUp., of lm-Yesucq or that: offioe; ,that these Wflre ,0«;>1 iCQin, but weIght; that the currency or .money In which ,all a.cco.untll were kypt in ShaIlghai; ·therewere,in Chilla, ,be,S):lRlfg.hai tael, the ChefoQtael, vi\l'ious
It appearedfrom
GORDON V. lIIAGONE.
749
other taels; that these other taels were also lumps of silver of different shapes, stamped or marked in a similar way to what the Shanghai tael9 were; that they were not coin, but weight, and were, in the respective partsof China in which they had their origin, the currency or money in which all accounts were kept; that all these differenttaels were regarded in China as having different values; that each of them was of less value than the haikwan tael, or government tael, in which duties at the custom-houses in China were estimated; that, in other words, it took the ordinary tael and some fraction thereof to equal in value a government tael; that the foreign value of all of these taels fluctuated as the value of silver fluctuated in London, but their value in China did not fluctuate; the copper cash, or tsien, as it was called, having certain Ohinese characters on it, and issued by the different provinces of China, was its only coin; that there were a great many different issues of copper cash, of IDll,ny sizes and qualities; that the copper cash was one thousand parts of a tael; that, like the Mexican silver dollar, it varied'in value in China. from time to time, the 1ael be,ing the only standard of value, ll,nd' was bought ll,nd sold the same as merchandise.. . , Both sides having rested, the defendant's counsel moved the court .to direct the jury to find a verdict in favor of the defendant on the following grounds: (1) That as the taels in suit, as. from the therein, are not coin, butcurrency, no power by secth)ll 356.4, Rev. or any other law of the United States, was given to the director Qf the mint to estimate, and to the secretary of the treasury to proclaim, value; (2) that if the value of these taels were a proper subject of mation by t4edirector Qfthe mint, and 'of proclamation by the secretl;1ry of the treasury; thl;l time of such estimation and proclamation was, by section 3564, Rev. St., for the year 1886, limited to the 1st day ofJanuary of that year, and anysuchestimationcir proclamation made after the last-mentioned day was null and void and of no effect for aay: pose during that year; (3) that as treasury circular No. 144, issued October 16, 1886, is the only thing in the case upon which the plaintiffs rely to establish the value of the taels in suit, there is no evidence in the case to show that the value of these taels, as taken by the defendant, as collector of customs, was not the true value thereof; and (4) that the plaintiffs have not proven facts sufficient to entitle them to recover. The plaintiffs' counsel also moved the court to direct a verdict fQr the plaintiffs. Edwin B. Smith and D. 1. Mackie, (or plaintifrs. Edward'Mitchell, U. S. Atty., and Thomas Greenwood, Asst. Atty., for defendant: . .' . LACOMBE, Circuit Judge, (orally.) I shall .follew,the ruling, which I made in the other case. . Gordon v. Hedden, May 7, 1889;t ,:rtjs not essential to a 'coin that it should bear the'date 'of itSissue,uor.that it should bear the name or i1l8ignia of the sovereign, nor that it should be ;
.
1\0 opinion 1iled.
FEDERAL REPORTER,
of any particular fO'rm,' that its counterfeiting be'mlide tl.' crime by statute. In this caseUappears that in China small masses of silver, not regular in shape, but conforming generally always unifurmin to the dellign which the witness drew for us, are brought to an officer to of the be weighed and' assayed. That officer is not directly an government, but it seems, to acquiesce in,his dischafging his functions. He is selected' by acon8en8Us of the leading members of financial and commercial houses, and it isbis duty, afterexamiriing each mass, to inscribe on it a statement oiits weight and fineness, predicated on the tael as a standard. Thus upon 'ea.oh separate mass (called "sycee ") it is stated that it contains five taels' and two-tenths, or three taels and one-seventh, or whatever may be the fact. These shoe-shaped pieces of silver, thus marked,circulate as theotl'ly money of account. They seem to be properly within the provisions of section 3564 of the Revised Statutes referred "to, being of: a substance, intrinsically valuable, and as readily comparable with our standard as Qre the various gold and silver' tdkens of other coun· tries. Such seems to have been the view taken at the mint, for the director has made the 'compl1rison and determination as't6 the ChinE'se tael, There is no force in the contention of the de· 'both in 1885 and :'fendl1nf that a retrospective effect will be given' to 'the proclamation of 'the secretary of the if the plaintiffs' views are sustained. It ap'pears inproof by the tlroclamation of October 16, 1886, that the di'reetorOfthe mint made the determination of value which he wae re:quired to do. When,as mattet oflaet; he made such determination is not stated, in theproclamationj and does not appear in' proof. The ute directed hinito make such determination in January 6f 1886, and, in of thecontrliry, it will be presumed that he perforJIled his entire duty, and made the determinationat the time when the' statute directed him to. ' A verdict is directed for the plaintiffs for the fnllamount claimed. . '
'uNl'i'En Sum (DIBtlict
tI. HOI,MES. December 26, 1889.)
coun, E; D. Missouri, E. D.
L P08T-QJ'l'IOB-DBTAINlN<J', LBTTEB-INDIOTM'BN'l'· . ',." lAp {nal.ctlnentagainst a postInB.ster, nnder. Rev. ,St. U. ,B, 5 8SIlO, for detaining , "mail, is sufficient if it allege In the words of the statute that the letter in question was unlawfully detained, with intent to prevent its arrival. It need not aver that , the letter was knowingly and willfully detained. .. /iil.AM/il. , ..' , ," u " '" ,, " , ' , JlJ.'he, indictment aUegin,g the letter was detained two days. "with intent to prevent the arriv$l, aDd <leavery of thl:l ;same" to thl:l, person addresBed. the offense was, complete. ait40ua h .at,the, expiration" ()f that period there JDa7 have betlD a ",'!" ,",,', '
On Demurrer to Indictment. Tkos. P. Baiha:w, for defendant.