Ex parte Davenport

THIS was a motion, by Mr Hall of counsel for the relator, for a mandamus to the judge of the district court of the United States for the southern district of New York, 'commanding him to restore to the record of the cause, the plea for tender, filed in the cause by the defendant, and to proceed to the trial, and judge thereupon according to law; and to vacate all rules and orders entered in the said court, setting aside such plea as a nullity.'

The affidavit of John A. Davenport was filed, stating the institution of a suit by the United States in the district court of the United States for the southern district of New York, in February term 1831, against himself and a certain John A. Lacon, and that a declaration was filed therein against the defendants, to which the said John A. Davenport, he being the only defendant who appeared, after oyer, interposed two pleas. The declaration was in debt on a bond to the United States for duties on merchandise imported into the port of New York by Thomas H. Lacon, one of the obligors, on the 1st day of May 1831, in the penal sum of five hundred dollars. The amount stated to be due to the United States, in the condition of the bond, was fifty dollars and twenty-five cents. In the margin of the bond was written in figures the sum of $228 34.

The first plea of the defendant was 'non est factum.'

The second plea stated, that when the bond became due, to wit on the 21st day of January 1832, before the commencement of the suit, the defendant Thomas H. Lacon was ready and willing, at the city of New York, to pay the amount due thereon, being the sum of fifty dollars and twenty-five cents, and that on the same day he tendered to the plaintiffs the said sum of money which the plaintiffs refused to receive; and that he was still willing and ready to pay the same; and that the said sum of fifty dollars and twenty-five cents was brought into court, to be paid to the plaintiffs.

The affidavit proceeded to state, that the bond was given on the importation of certain manufactured iron into the port of New York; for which, as manufactured iron, and according to the tariff, the amount of duties as set forth in the condition of the bond was correct. That the collector of the port of New York, however, upon an allegation that such iron was not manufactured iron but was subject to a specific duty, increased the amount of duties to the sum set forth in the margin of the bond, and filled in, or caused to be filled in, the penalty of five hundred dollars; being after the execution of the bond and tender of payment, and without the assent of the deponent, to enable a recovery to be had to the extent of the increased duty; and that a tender of the amount in the condition mentioned was made, in order to test the questions arising out of the acts of the collector, and the plea interposed accordingly.

The affidavit further stated, that the district attorney of the United States moved to strike off from the record the plea of tender as a nullity; and that upon argument, the district judge did decide, that, under the act of congress, no other plea could be interposed to the bond except the plea of non est factum; and did thereupon order the said plea to be stricken from the record as a nullity.

Mr Taney, attorney-general, presented to the court the affidavit of the district attorney of the United States for the southern district of New York, stating the circumstances of the case; and also a certified copy of the proceedings in the district court.

The case was submitted without argument.

Mr Justice STORY delivered the opinion of the Court.