Converse v. Burgess

THIS case was brought up, by writ of error, from the circuit court of the United States for the district of Massachusetts.

The facts of the case are stated in the opinion of the court. It is only necessary to add the protest and evidence offered as they were stated in the bill of exceptions, namely:--

'I this day pay to Philip Greely, jr., collector of this port, on behalf of Messrs. B. Burgess and Sons, the sum of sixteen hundred forty-three dollars and 48/100, more or less, claimed by him as due to the United States from them, on merchandise imported by them in the brig Eliza Burgess, under protest, with the intention of reclaiming the same or any part thereof, as may be found to have been illegally paid by them. Said sum is claimed by advance of value on the merchandise by the appraisers, thereby increasing the duties and assessing a penalty-all of which we protest against on the ground of fair valuation in the invoice, and that the goods were not fairly and faithfully examined by the appraisers.

N. B. GIBBS.'

The plaintiffs further offered to prove, under said protest, that the merchant appraisers did not examine or see any of the original packages of the merchandise in question, and only saw samples which had been taken on the 26th of April, 1850, from one in ten of the packages described in the invoice, and that such samples, so drawn and exposed to the air, would not afford a fair criterion by which to judge of the importation, and claimed the right to go behind the return of the said merchant appraisers, on the ground that they had not examined the sugars, as required by law, and to put it as a question of fact to the jury without alleging fraud.

The defendant objected to the admission of such evidence to go to the jury in the absence of fraud on the part of the appraisers, and claimed that their decision was in the nature of an award, and final under the statute, and not open under this protest. But this court ruled that the evidence was admissible, and that the plaintiffs might go to the jury on the facts, whether the examination made by the merchant appraisers was, in substance and effect, equivalent to an examination of one package in ten of the importation, and if it was not, that the appraisement was void. Whereupon the counsel for the defendant did then and there except to the said rulings of the court, and thereupon the jury returned a verdict for the plaintiffs, for $2,127.68.

The case was submitted, on printed arguments, by Mr. Cushing, (attorney-general,) for the plaintiff in error, and Mr. Andros, for the defendants.

Mr. Justice CAMPBELL delivered the opinion of the court.