author: Mr. Justice Story Mr. Justice Thompson,

text:
    William B. Bend vs. Jesse Hoyt.
    The plaintiff, as the importer of certain merchandise from England, entered the same at the customhouse in New York, on the 29th of March, 1837, as cases containing cotton gloves. He gave ,a bond for the duties, payable on the 27th of June, 1838. In 1838, it was discovered that one of the cases, No, 45, contained silk hose,'and not cotton gloves. The plaintiff paid the bond to the collector, under protest; and claimed from the comp- - trolier of the treasury, to be released from the payment of the duties on case No. 45, alleging, that as silk hose, they were net liable to duty under the act of ’Congress of 14th July, 1832. The' plaintiff instituted a suit against the collector, to recover back the duties so paid by him. Held, that the suit could not be sustained, after so long á time from the entry of the merchandise. Held, that silk hose, and all manufactpres of silk, of which silk is the component material of chief value, coming from this side of the Cape of Good Hope, except sewing silk, are free of duty.
    Even Courts of Equity will not interfere to assist a party to obtain redress for an injury which he might, by ordinary dilig'ence, have avoided. And, a fortiori, a Court of law ought not, when the other party has by his very acts and omissions lost his own proper rights and advantages.
    A collector is generally liable in an-action to recover back an excess of duties paid to him as collector, when the duties have been illegally demanded, and a protest of the illegality has been made at the time of payment, or notice given that the party means to contest the claim. Nor is there any doubt that a like action generally lies, where the excess of duties has been paid under a mistake of fact, and notice thereof has been given to the collector before he has paid over the money to the government.
    ON a certificate of division of opinion from Circuit Court of the United States, for the southern district of New York.
    This suit was originally instituted in the Superior Court of New York, and was afterwards brought before the Circuit Court of the southern district of New York, by a'certiorari. An action of assumpsit was instituted against the collector of the port of New York, to recover the sum’of one hundred and twenty-seven dollars, paid to him by the plaintiff, for the importation of silk hose. The duty was levied at the fate of twenty-five .per centum ad valorem, “as hosiery,” under the second article of the second section of the act of Congress of 14th July, 1832, entitled “ an act to alter and amend the several acts imposing duties on imports.” -‘
    Upon the trial it was proved, that on the. 29th of March, 1837, the plaintiff made an entry at the customhouse in New York, of eight cases of cotton gloves, and that the duty was levied on each'of the eight packages of twenty-five per centum ad valorem; for which duty, with the duties on other goods, the plaintiff gave a bond for two hundred and ninety-four dollars, payable on the 27th June, 1838.. .. .
    The plaintiff on making the entry, made the usual affidavit to the truth of the invoice and bill of lading produced by him, and that the invoice produced by him was the true invoice of. the cost of. the goods, and that if any error was discerned in the invoice or cost of the-goods, he would immediately make the same known to the collector.
    .It was proved, that in the year 183S, it was discovered-that case Ne. 45, one of the packages in' the'invoice, did not contain cotton gloves, bu-t. actually, contained-silk hose* and that one hundred and ,twenty-seven dollars and ninety-two cents, were bonded by the plaintiff, under the belief that the case contained cotton gloves. On the 28th June, 1838, .the plaintiff Served a protest on the collector, against, the payment of the bond given to secure the duties. The protest stated, that the bond had been given under a clear misapprehension of the nature of the goods, and claimed , a deduction from-the bond of the amount of the estimated duties on box No. 45, supposing the box to contain- cotton gloves.
    The plaintiff had previously, requested the comptroller of the treasury to release him from the payment of the duties; and the comptroller in reply, refused to correct “ errors in fact.”
    On the trial of the cause, the collector introduced and read to the jury, to show the habitually loose manner in which the plaintiff transacted -his business, an affidavit made by the plaintiff on the 25th of April, 1838.
    The affidavit stated, “ that on the-27th day of March, 1837, he imported in the ship Rosco.e, from Liverpool, eight cases and casks of hosiery and gloves, marked B 3S to .45, owned by B.arker and Adam§, manufacturers of Nottingham, England, and consigned by them to him,the said William B. Bend, for sale; that his clerk not being able-to ascertain from the-wording of the invoice, which packages contained gloves, and which hosiery, p.nd knowing that cotton gloves and cotton hosiery paid the same duty,-he entered them all upon arrival at the customhouse, in the port of -New York, as cotton gloves; that a duty of twenty-five per centum was charged upon .them by the collector of the' paid port, and that he, the said Bend, gave bonds to the said collector, to pay the said duties; that on examination of the goods contained in one of the aforesaid cases,' markedrB 45, he found them to be spun silk hoisery, and not cotton gloves,-as entered by him at the_ customhouse; and furthermore, that the goods are called, upon the original invoice, passed at the ■ customhouse, “spun knots;” a term which is well known in the trade to be applied to hosiery of silk only: and that he vdrily believes the error of entering the said case, and paying duty, arose from the ignorance of his clerk who made, the entry ; that he,.the said Bend, did no't upon this, nor does he - upon any occasion, examine .whether the customhouse entries, made by the- said clerk, are • cortect. Arid- thé said William B. Bend, further maketli. oath, that he ' has never sold any part of the said case, B 45, arid that, to the bes.t of his knowledge and belief, nothing has been ever taken from or added to it, but that it is in every respect in the same condition as it was when he received it.”
    . It was also proved, that the package No. 45, was never, in the custody of the collector, nor subjected to the examination of the public appraisers; and that the first intimation the collector had that it contained silk, was in’March or April, 1838. ■
    It was also proved,, that the merchandise contained in the package No. 45, was silk hose, made of the tow of silk, a coarse quality of silk, but still silk, sometimes called sponge'd silk; and that the said merchandise was well known, in commerce, under the denomination of hosiery.
    Upon the foregoing evidence, given during the progress-of the trial, the following points were presented on the part of the defendant, for the opinion of the judges, on each of which the judges were divided in opinion.
    1. Whether, assuming' that an excess of duties was paid by mistake, under the facts above stated to the collector, on the before mentioned package, No. 45, the plaintiff, under the said facts, is entitled to recover back such excess, in a personal action against the collector ?
    2. Whether the said silk hose was subject to the payment' of the duty imposed on “ hoisery” by the second clause of the second section of the act of July 14th, 1832, entitled “an act to alter and amend the several acts imposing duties on-imports;” or whether, as manufactures of silk, not being sewing silk, the goods, wares, and merchandise, contained in said package, No'. 45, were exempted from the payment of duty by the fourth section of the act of March 2d, Í833, entitled “an act to modify the act of the fourteenth of ■July, one thousand eight hundred.and thirty-two, and all other acts imposing duties on imports.;”' which declares that all manufactures of silk, or of which silk is the component material of chief value, coming from this side of the Cape of Good Hope, except sewing 'silk, shall be free?
    Which said points, upon which the disagreement happened, are stated under the direction.of the -judges of the said Court, at the request of the counsel’ for the parties in the cause, and ordered to be certified unto the Supreme Court of the United States, at the next session.
    The case was argued by Mr. Raymond and Coxe, for the plaintiff; and by Mr. Grundy, the Attorney General of the United States, for the defendant.'
   Mr. Justice Story

delivered the opinion of the Court.—

This case comes before us upon a certificate of division of opinion of the judges of the Circuit-Court of the southern district of New York! The original suit was assumpsit to recover back from the deféildant, who is the collector of the port and district Of New York, a sum of money paid as duties upon certain imported goods, upon the ground that they were .not liable to duty ' Upon the trial it appeared, that on the 29th of March, 1837, an entry was made by the plaintiff, as consignee, at the customhouse of New York, of eight cases of cotton gloves, rharked- B, numbered from 38 to 45, as imported from Liverpool, England. The case, number 43, was. designated on the invoice to be examined, and was passed as correct; whereupon the duty was levied upon each of the eight package's at 25 per centum a'd valorem, as being cotton gloves; which duty was secured by a bond, which became due on the 27th of •June, 1838. Upon making the entry, the invoice of the goods was produced, and the comnion oath on such occasions taken and subscribed in the form prescribed by law. It was proved, that in the year 1838, it was discovered by the plaintiff, that the case numbered 4§ did not contain cotton gloves, but actually contained silk hose; and that the plaintiff had paid $127.92 for duties, under the belief that the package contained cotton gloves. On the 25th of April, 1838, the plaintiff addressed a letter to the comptroller of the treasury, requesting to b.e released from,the payment of the duty.; to which the comptroller replied on the 27th of the same month, refusing to do so, upon the ground that whether the goods were composed of silk or of cotton was' clearly a matter of fact, and should have been settled before the removal of the goods from the customhouse ; and that he did not feel authorized to make the plaintiff’s case an exception to' the uniform and long established rule of the department, by permitting a revision of the' entry. Oh the 26th of June, 1838, the plaintiff addressed a letter to the defendant, informing him that no duties were payable on .the goods; and that in pay- ■ ing the amount he should do it under protest, reserving his legal rights. It was further proved, that the package number 45 never was in the custody of the collector, nor subjected to the examination of the public appraisers-; and that the first intipation that the collector had, that it contained silk hose, was in March or April, 1838. The merchandise contained in the package number 45 was silk hose made of the tow of silk, a coarse quality of silk, but still silk, sometimes called sponged silk; and was well known in commerce under the denomination of hosiery. An affidavit of the plaintiff-was read in evidence by the defendant, to show the habitually loose manner in which the plaintiff transacted his business with the customhouse; and in which, among other things, the plaintiff attributed the error in the entry at the customhouse to the ignorance of his own clerk in making the entry, and not being able to understand, from the.wording of the invoice, which packages contained gloves,,and which hosiery.

Upon this evidence the following .points were presented by'the defendant for the opinion of the judges, on each of which the judges were divided in opinion. 1. Whether, assuming that an excess of duties was paid by mistake, under the facts above stated, to the* collector, on the before mentioned package number 45, the plaintiff, under the said facts, is entitled to recover back such excess in a personal'action against the collector. 2. Whether the said silk hose .was súbject to the payment .of duty imposed on hosiery by the second clause of the second section of the" act of the 14th of July, 1832, ch. 224, entitled, “■ An act to alter'and amend the several acts imposing duties on imports;” or- whether, as manufactures of silk, not being sewing silk, the same were exempted from, the payment of duty by the fourth section of the act of the 2d of March, 1833, entitled, &c., ch. 354, which declares that, all manufactures pf sjlk, or ' of which silk is the component material of chief value, coming from this side of the Cape.of Good Hope, except sewing silk, shall he free.

As to the first question, there is no doubt that the collector is generally liable in an action to recover back an excess of duties paid to him as collector, where the" duties have been illegally demanded, and a protest of the illegality has been made at th'e time of the payment, or notice then given that the party means to contest the claim; whether he has paid over the money to. the government or not. Nor is there any .doubt that a like action generally lies where the excess of duties has been paid under a mistake of fact, and notice thereof has been given to the collector before he has paid over the money to the government. Both of these propositions are fully discussed and decided in the case of Elliot vs. Swartwout, 10 Peters’ R. 137; and if the present point involved nothing more, there would be no substantial ground of controversy. But there are other ingredients in the present case.

The goods were actually entered by the plaintiff at the .customhouse, by.a particular description — that of cotton goods; and he then.swore that the invoice then produced by him was the true invoice received by him, and that the entry contained a just- and true account of the same goods; and. upon the faith of that entry and oath, the goods .were actually delivered to him by the collector without any. éxamination whatsoever. No notice was given to the collector of any mistake until nine or ten months afterwards, when the government was no longer in a. condition to ascertain the real state of the facts; and when, of course., it was compelled to rely exclusively upon the evidence furnished by the plaintiff. Now, certainly, it was the duty of the plaintiff, before making the entry at the customhouse, to have exercised due diligence in examining his papers, and ascertaining the true state of the facts, before he undertook to verify them under the solemnity of an oath. That he was grossly negligent in this particular is plain from his own showing; and that the loss, if any has accrued to him, has accrued from his negligence and inattention to his duty, is equally clear. The question then arises, whether this action is maintainable, not under ordinary circumstances of innocent mistake, but under circumstances of culpable negligence on the part of the plaintiff, and when the government can no longer be replaced in the same* situation in which it stood at the time of the original transaction. Upon the best consideration which we can. give to the subject, we are of opinion, that the action, under such circumstances, is not maintainable. If a different rule were to prevail, the whole policy of the laws for the collection of duties would be broken in Upon-; there would be no certainty whatsoever as to the amount or receipt of the revenue; and the grossest evasions and frauds might he practised with perfect impunity. Instead of the invoice or entry, with the accompanying oath of the party, furnishing the just means of ascertaining the nature, and quality, and character of the goods imported, pnd the amount of duties payable thereon; every thing would be left loose, and. open, in case of contest, to the uncertain evidence to be produced before- successive juries. The whole system of guards introduced into the revenue laws, for the purpose of ascertaining the nature, quality, description, and value of imported goods, would in a short time, amount to little more than forms, as vexatious as they would be inefficacious. The act of 1823, ch. 149, in amendment of the former acts for the collection of duties, manifestly lays great stress-on the invoice, produced at the time of the entry of' the goods at the customhouse, and the accompanying oath of the importer; as the truest and best means of ascertaining the nature, and quality, and values of the goods, and. the basis of the duties to be charged thefeon; as is apparent from the series of sections from the fourth to the fifteenth sections. Invoices duly verified and authenticated, are deemed a sufficient title to entry; while others, not so verified and authenticated, are declared to be deemed to be suspected, and liable to be treated in the same manner as fraudulent invoices. And-the 23d section of the act provides, that when goods are admitted to an entry' upon invoice, the collector shall certify the same under his official'seal; and no other evidence of the value of such goods shall be admitted on the part of the owner in any Court of the United States, except in corroboration of such entry. It seems difficult to resist the conclusion, that though the language of this section is confined in its terms to • the invoice value of the goods, because the duties were to be calculated ad valorem thereby, yet that, consistently With its professed objects, it ought tó be deemed equally conclusive as evidence of the nature, quality, aqd description of the goods. At all events, it .would seem to be against the whole policy of the act, as well as of the other acts of Congress respecting the collection of- the revenue, to permit a man to enter packages of goods by one description, under bis solemn oath, and thus ■ to withdraw them from the custody of the collector, without any examination of the contents of the packages; and afterwards to insist upon another description totally different, and thereby to change the rate of duties, or to claim an exemption from all duties. The public inconveniences attendant upon such a' practice, would alone be suffix crent to repel any presumption that Congress intended to authorize it, unless there were some explicit provision in favour of it; and the uniform course 'of the government' to disallow it, furnishes strong evidence that the true construction of the act does not justify the practice. The consignee had his choice at the time of the entry, either to rely on. his invoice, or to have the contents of each package examined. He chose the former; and the latter is, on the part of' the government, no longer practicable — -at least not so far as to be satisfactory or certain in its results. The error, if any there has . been, has arisen, as we have already stated, from his own culpablé negligence; and Courts of justice do not sit for the purpose of aiding those who seek redress for supposed mischiefs resulting from such negligence. Even Courts of equity will not interfere to assist a party to obtain redress for an injure which he might by ordinary. diligence have avoided; and, a fortiori, a Court of law ought not;, where - the other party has, by the very acts or omissions, lost his. own proper rights or advantages.

No case has been cited, and none has come to our knowledge,, where an actio'n has been maintained at law, under circumstances; like the present; where money has been sought to be recovered for a mistake of fact.oecasioned by the culpable negligence of the plain-, tiff, and where the retaining of it oh the other side is not unconscientious. The case here cannot be better than it would have been, if' the plaintiff had refused to pay the.duty bond; and, to an action, on the bond, he had pleaded in his defence the very matters now insisted on. It .would certainly have been difficult to have framed, a plea to sustain such a defence in point of law. If the objection were to be insisted on, that would seem to have been as .proper a. mode of meeting it as eould have'been devised; though, looking to the penal consequences of not paying a duty bond, as it withdraws from the party all future credit at the customhouse while it continues, we do not say that the present mode may not also be appropriate. Lord Mansfield, in Moses vs. Macfarlan, 2 Burr. R. 1005. 1012,. speaking of an action for money had and received, observed that it lies for money paid by mistake, or upon a consideration which hap-, pens to fail, or for money got through imposition, (express or implied,) or extortion, or oppression, or an undue advantage taken of the plaintiff’s situation, contrary to laws made for the protection of persons under such circumstances. And he added, in one word, the -gist of the action is, that the defendant, under' the circumstances of' the case, is obliged, by the ties of natural justice and equity, 'to refund the money.' In Bize vs. Dickason, 1 Term Rep. 285, he also, said: The rule has always been, that if a man has actually paid, what the law would snot have compelled him to pay., but what in equity and conscience he ought, he cannot recover it back again:. But where money is paid under a mistake, which there was no. ground to claim in conscience, the party may recover it back again by this, kind of aciion. Now, admitting the entire correctness of this doctrine in its full extent, (and no more-than general truth can. be imputed to it,) it leaves the whole matter open upon which the-present controversy turns; and that is, whether there is any-Want of conscience in the collector’s retaining this money. And it leave» wholly untouched the ground, what would be the effect if the mistake and the payment consequent thereon, had. been the consequence-of the culpable negligence or misconduct of the plaintiff himself,, without any default on the other side, and where- thereby he could not be placed in statu quo. Our opinion is, that, upon principle, under-such circumstances, no such action is or ought to be maintainable. In Milnes vs. Duncan, 6 Barn. and Cresw. 671, the party was allowed; to recover back money paid under a mistake .of fact, there being no. laches imphtabledo him ;■ and that was the very ground Of the decision*. In that .case, Mr. Justice Bayley said: If a party'pay money Under, a mistake of the law, he cannot recover it back. But if h® pay money under a mistake, of the real facts, and no laches are imputable to him, i,n respect of his omission to avail himself of the ■means of knowledge within his power, he • may recover hack the moneys and he added, in this case, the question is, whether there was, on the part of the plaintiff, at the time when he made the payment, ignorance of the true state-.of the facts; or any negligence imputable to him in n'ot availing himself of the means of knowledge within his power So that we here see it admitted that negligence would constitute a good defence to the .suit. In Skyring vs. Greenwood, 4 Barn. and Cresw. 281,,it was held that money paid by a"paymaster to an army officer, could not be recovered back again, or claimed by way of set off, he having been guilty of a breach of duty and of negligence in not communicating to the officer certain information of the.disallowance of the claim of the officer, on which the money was paid by the board of ordnance at an earlier period, when his conduct might have been influenced by it. These cases, although not exactly-in point with the present, clearly show fhateven in cases of money, paid under a mistake of facts, if the party-has been guilty of negligence, or of a breach of his proper duty in the transaction, he is not entitled to recover back the money, if paid, or to retain it, if unpaid, against the other party, whose rights or conduct have been affected by such negligence or breach of duty. We think the principle a sound one, and should not hesitate to adopt it, even if there were no authority to support it. Its application to the circumstances of the present case cannot well he questioned. Here, by the conduct and solemn affirmations, under oath, of the plaintiff, the position of the United States has been entirely changed; the property has been delivered up from the custody of the government, without any search or examination, m the. perfect confidence that all was right; and we think the plaintiff is now estopped from setting up his own culpable negligence, to excuse him from the payment of the duties, which, by his own entry and Oath, he admitted to be due, gnd thereby obtained a delivery of the goods.

In this view of the matter, it might not be necessary for the Court to answer the-other question, upon which’ the Court below was divided, as our answer to the first decides the merits of the plaintiiPs case. But as the same question is • involved in Hardy vs. Hoyt, which has been argued in connexion with the present, we shall now proceed to the consideration of it. The question is, whether silk hose is subject to the payment of the duty imposed on hosiery by the second clause of the second section of the duty act of 1832. ch. .224. That section enacts, that from and after the 3d day of March, 1833, on the articles therein after mentioned, there shall he levied, collected, and paid, the following duties : First, wool, unmanufactured, certain duties specified in the first clause. Second, (which is the clause in quéStion,)On all milled and felled cloth, known by the name of plains, kerseys, or kendal cottons, of which wool shall bé the only .material, the value whereof shall not exceed thirty-five cents a square yard, five,per centum ad valorem; on worsted stuff goods,shawls,and other manufacture^ of silk and worsted,tenpercentum ad valorem; on worsted yarn', twenty.per centum ad valorem; on woollen yarn, four cents per pound, and fifty per centum ad valorem j on mits, gloves, bindings, blankets, hosiery, and carpets and carpetings, twenty-five per cént., except Brussels; Wilton, and treble ingrained carpeting, which shall be at sixty-three cents the square yard, all other ingrained aiid Venetian carpeting at. thirty-five cents the square yard; and except blankets, the value whereof ,at the place whence exported shall not exceed seventy-five cents each, the duty to be levied upon which shall be five per centum ad valorem; on flannels, bookings, and baizes, sixteen cents the square yard, on warp laces thirty-five per centum; and upon merino shawls made of wool, all other manufactures of wool, or of,which wool is a component part, and on ready made clothing, fifty per centum ad valorem.” Now; looking to the terms of this clause, and the connexion, in which hosiery stands with the other enumerated articles, the natural construction of it would certainly be, that it was restricted to- hosiery, ejusdem generis, that is to sáy, hosiery of wo'ol, or of which wool was a component part. It stands in connexion with mits, gloves, binding, blankets, and carpeting, and the exceptions carved but of it are all articles composed of. wool, viz. certain ki'nds of carpetings and blankets. It is followed by flannels, bookings, . and baizes, coach laces, and merino shawls, and then come the sweeping. words, “ all other manufactures of wool, or of which wool is a component part;” which certainly seem to presuppose that all the preceding enumerated articles were of a kindred nature and fabric.' The words “ ready made clothing,” follow this enumeration, and, therefore, are not necessarily governed by the same interpretation, since they are not inserted as a qualification of-the sweeping words already referred to, but stand' as an independent descriptive specification, capable of being applied to every variety of ready made clothing, whatever may be the fabric. No argument, therefore, can properly be derived from this part of the clause respecting ready made clothing, to control the natural deductions arising from the antecedent language of .the same clause.

But the case before us does not turn upon the interpretation of ,-the second clause standing alone., but it is-materially affected by the fifteenth clause of the same section of the act, which prescribes a rate of duty on manufactures of silk, in the following words: On all manufactures of silk or of which silk shall be a component part, coming from beyond the Cape of Good Hope, ten per centum ad valorem, and bn all other manufactures of silk, or of which silk is a- component part, five per centum ad valorem, except sewing silk, which shall be forty'per centum ad valorem.” Now, this language, in its positive import, includes all manufactures of silk except sewing silk; and the very exception of sewing silk, lends additional force to the conclusion, tfyat no other manufactures of silk were intended to be excepted from the operation of the clause, upon the well known maxim, that an exception in. a statute amounts to an affirmation of the application of its provisions to all other cases not excepted Upon what ground, then, can this Court say, that silk hose, being a manufacture of silk, is not solely and exclusively liable to the duty Imposed by the fifteenth'clause of the section ? Upon none, unless'it manifestly appears tobe repugnant to'some other provision of the statute. No such repugnancy exists if-we construe the word “ hosiery,” m the second clause of the second section to mean, as in its natural connexion it imports, hosiery of wool, or of which wool is a component part. On the other hand, if we construe “ hosiery” in this connexion, to include silk hose, then all other manufactures of silk, except sewing silk, are not governed by the fifteenth clause; and thus we create a positive repugnancy between the second and fifteenth clauses. Now, it .is the'duty of Courts of Justice so to construe all statutes as to give full effect to all the ,word§. in their ordinary sense, if this can be properly done; and ■thus to preserve the harmony of all the provisions. ■ And besides, if we are to' create an implied exception as to hosiery, the same rule might be applied to silk mits, silk gloves, and silk bindings; and if there are such articles, to carpetings of silk. Indeed, there would be no end to implied exceptions. If the legislature meant specially to except silk hose, or any other particular manufactures of silk from the general language, the natural course would have been to have placed them as exceptions with sewing silk; - and the oniission' is, in our judgment, conclusive to show tfyat none others were intended.

If we look back to the duty act of the 1.9th of May, 1828, ch. 55, which the act of 1832 was designed in'a great measure to modify or supersede, and in which, for the first’ time in our legislature,, “hosiery” is mentioned, eo nomine; there cannot be-a doubt that the legislative intention, then, was confined to woollen hosiery. The second clause of the second section of that- act is in” the following words: “ On manufactures of wool, or of which wool shall be a component part, except carpeting, blankets, worsted stuff goods, bombazines, hosiery, mits, gloves, caps, • and bindings,, the actual value of which at the place whence imported shall not exceed fifty cents the square yard, shall be deemed to have cost fifty cents the square yard, and be charged, with a duty of forty per centum ad valorem, &c., &c.” The third, fourth, fifth, and sixth clauses of the same section lay a particular duty on other manufactures of wool, “exceptas aforesaid;” and then the seventh, taking up the exception, says, “on woollen blankets, hosiery, mits, gloves, and bindings, twenty-five per cent, ad valorem.. On clothing ready made, fifty per centum ad valorem.” It is impossible, reading these clauses in connexion, not to perceive that the exceptions in the second clause, are wholly of fabrics of wool, or of which wool is a component material; for every exception must be considered in such a case to be of something ejusdem generis. Then follows in the sixth.clause, “ On all manufactures of silk, or of which silk is the component material, coming from beyond the Cape of Good Hope, a duty of twenty per ceptum ad valorem, &,c.; and up all other manufactures of silk, or of whiph sük shall be' a component material, twenty per centum ad .valorem.” Construing, .hen, these acts as being in pari, materia, if we. were- at liberty [o look beyond the act of 1832, to the antecedent 'state of the law on this subject, •the duty on hosiery, as such, was confined to hosiery of wool, or of which wool is a component part.

But if any doubt corud be entertained upon tire act ó£ 1832* ch. 224, interpreted by itself, or by the antecedent laws, we think none. whatsoever can be entertained as to the .true inténdihent and operation of the .act of .2d of March, 1833, ch. 354.' That act in the fourth section, expressly enacts, that in ¿ddition to the articles then exempted .from duty by the act of 1832, and other existing laws, from the payment of .duties, the following articles, imported from, and after the 31st-of December, 1833, and until', the 30th pf June, 1842, shall also he admitted free from duty; “to wit, bleached and.' unbleached linens, table linen, linen napkins, and finen cambrics, and worsted stuff goods, shawls, and other manufactures, of silk and worsted, manufactures of silk, or of which silk shall be .the component ;material of chief valué, coming from this side of the Cape of Good Hope, except sewing silk.” This section, in express terms, declares that manufactures of silk eoming from this side of the Cape of Good Hope, (which is the very predicament of the silk hose in question,) except sewing silk, shall be free from duty.' And it would violate every rule of interpretation to hold, that where the legislature had declared all manufactures of. silk, except one, free from duty, the Court should create other exceptions by its own authority, without, any express or implied intent on the part of the legislature, manifested in the context to warrant such exceptions.

Upon the whole, we are of opinion, first, that upon the facts stated, the present.action is not maintainable: and, secondly, that silk hose is free of duty under the act of 1833. A certificate will be sent to the Circuit Court, accordingly.

Mr. Justice Thompson,

dissenting.

The amount in controversy in this case is too small to attach mucn importance to it, on that account. But the principle involved in the' decision, and the practical effect it is to have upon the course of business at the customhouse, between the merchant and collector; must be my excuse for' publicly dissenting from the opinion of the Court, in a case apparently of so little importancé in itself.

t fully concur imf^at part of the opinion which exempts the goods in question-(silk hosiery) from the payment of any-duty; but dissent from that part which exonerates the collector from an ac-tion to recover back, the duties received by him. without any auíft'ffrity '-warrantedby law.

TheK>nly question presented oy the point certified to tliis Court, is whether the plaintiff is entitled to recover from the collector a sum of money, admitted to have been paid to him by mistake* without the least colour or suspicion of fraud or misconduct on the part off the plaintiff; and the mistake made known to the collector before the money was actually paid, and a claim interposed to have it deducted from his bond. The opinion of the Court upon the other, point certified, settles the question that the-silk hosiery on which the duty was paid, was not subject to duty. The money was therefore iii the hands of the collector, without any right whatever to hold it, and 'exacted in violation Of law; not a voluntary payment, but demanded under the penalty,of a loss of credit at the customhouse, if the bond was not paid. If, under such circumstances, the money cannot be recovered back, it must rest upon some stern and unyielding principles of law or public-policy, against the manifest justice of the case. But, in my judgment, there are no principles of law or public policy that-can uphold such a course-on- the part of the pollector.

■ But it may be proper to state, a little more particularly, the circumstances under which the money was paid to the collector. Upon ' the trial in the Circuit Courty an affidavit of the plaintiff was produced and-read in evidence by the defendant^ and he cannot now: be permitted to deny the truth of the facts therein., stated. In this affidavit, the plaintiff states, that in March, 1837, heimported from Liverpool, in the ship Roscoe, eight cases and casks of hosiery and gloves, owned by Barker and Adams, manufacturers of Nottingham in England, and consigned by them to him for sale. That his clerk no.t being able to ascertain from the wording of the invoice, which - packages contained gloves and which hosiery, and knowing , that 'cotton gloves and cotton hosiery paid, the same duty; he entered' them all at the customhouse as cotton gloves, and a duty of twenty-five per cent, -was- charged upon them by the collector, and he gave bonds for the payment of the duties. That upon an examination of the goods contained in one of the cases, marked B 45,he found them td.be spun silk hosiery, and not cotton gloves, as entered at the' customhouse. That the goods -are. called upon the original invoice passed at the customhouse, “spun knots,” a term well known ñrthe trade to be applied to hosiery of silk only; and that he verily be-lieved, that the error of entry of the said case as paying duty, arose from the ignorance of the clerk who made the entry. That he did ■not upon this, nor does, he upon any occasion examine whether the customhouse entries made by his clerk are correct. And he further swears, that he had never sold any part of that case; and that, to the best of his' knowledge and belief, nothing had'been taken from-or added .to it, but that it was in every respect in the same condition as it was when he received it.

This deposition establishes, beyond all controversy, that the entry was a pure mistake. .And suppose it arose from the ignorance of the-clerk in not understanding the kind of goods called spun knots ?- It was. equally the ignorance of the customhouse officer who received the" entry; for not only the oath upon which the entry was made, states that the original invoice was presented to the collector, upon Which the article is. denominated spun knots; but it is required by law, that the original invoice should be produced to the collector at the time the entry is made, 1 Story, 606, s. 36. He had. therefore the same means of knowing what the cases contained, as the clerk who made the entry, the cases not having been opened or examined. It was, therefore, a case of mutual error or mutual ignorance. There are no grounds whatever for charging the plaintiff with negligence in this case. He pursued the ordinary course of business. Entries at the customhouse are usually made by clerks. But if no mistake made by a clerk can be corrected, every merchant will be obliged to submit in silence to all losses occasioned by mistakes, or attend in person to make his entries; which will be entirely changing the course of business. But suppose the plaintiff himself had ihade the mistake; can it be that it is beyond the reach of the law to correct such mistakes. The rule now laid down by the Court would equally extend to such a case. If there are any grounds whatever-to .suspect fraud or imposition, it is open to inquiry. But to close the door against correcting innocent mistakes, on any suppqsed ground of public, policy,' is applying a very severe rule to the transaction of business at the .customhouse, ,and one that, in my judgment, is not called for to protect' the revenue of the country. And the very form of the oath required by law to he made on the entry, presupposes that mistakes may be committed, and provides for the correction of them. The person on whose oath the entry is made, swears that the invoice and bill of lading presented to the collector, is the true, and only invoice of the goods received, and that the entry con-, tains' a just and true account of the goods according to the invoice' and bill of lading, and that nothing to his knowledge has -been suppressed or concealed, whereby the United States may be defrauded of any part of the-duty lawfully due oh the said goods; and that if at any time thereafter, he discovers any error in the invoice, or in the account rendered of the goods, &c., he will immediately make thejrsame known to the collector. There is nothing in this case to take it out of the rule of law applicable to ordinary innocent mis-, takes.

. The original invoice was produced and laid before the collector as'by law required, to be examined and compared with the entry; in which invoice the goods aré denominated spun knots. If, therefore, there was any supposed error in the clerk in-entering them as gloves, it was the duty of the collector to have corrected the-error; and he is as much chargeable with negligence as the, clerk. But, the 'reason why.no notice was taken of.it, doubtless, was, that'it was altogether unimportant, in the view of the collector: for he; considered the duty chargeable upon the goods as hosiery, and that it was perfectly immaterial whether-it was cotton or silk hosiery..

There is nothing in the case to show that the error or mistake was not immediately made known to the collector, as soon as it .was discovered; of that the collector made any .objection to correcting it on that account. And it was in proof that it was made known tp himv before the duties wer& paid.' It having been settled by this Court, that according to the true construction of the acts of Congress, no duties could be demanded upon this hosiery, there can be no doubt that if the plaintiff had not pMd the duties, but suffered his bond to bé prosecuted, this mistake in the estimate of duties might have been set up by way of defence, and deduction from the bond. ' The bond is not given for the payment of any sum certain for the duties; but in á penalty sufficient to cover the supposed amount, with a Condition to pay the amount of duties to b.e ascertained upon the goods in the entry referred to, 1 Story, 689, s. 68: and the question.is therefore-open to inquiry, what was the amount due upon the goods contained in such entry, if any error or mistake has occurred. But the obligors in the bond cannot permit themselves to be sued, with-, out forfeiting their- credit at the customhouse; for the act of Congress declares, that no person whose bond has' been received either as principal or surety for-the payment of' duties, and which bond may be due and unsatisfied, shall be allowed a future credit for duties, until such bond shall be fully paid or satisfied. And the merchant had better submit to the imposition of paying illegal duties, especially if. they are of small amount, than to have his credit suspended at the customhouse until he can try the question in a suit upon the bond. Money exacted under such circumstances, is but little short of duress, if the collector is protected from any suit to .recover it back. I cannot believe that there is any principle of law or public policy, that can be permitted to work such injustice. Due notice was given to the collector before the bond fell due of the mistake, and a claim to have the deduction made upon the bond; and no pretence on the part of the collector that the notice.came too late, or any suggestion of fraud or unfair conduct .en the.párt of the .plaintiff The collector therefore acted with full knowledge of all the facts — and indeed under an implied admission of the mistake.' For he.professéd to act under the instructions of the comptroller of. the treasury, that no errors of fact could be corrected after the merchan-< dise had passed beyond the. control of the officers of the customs. If such be the rule of the customhouse, no errors or mistakes can be corrected, unless every’package of goods shall be opened and examined at the-public stores before- being delivered to the merchant, which would be contrary to the uniform course of business. ' But I .trust the instructions of the comptroller ■ are net to be .assumed as law.

Although instructions from the treasury department may afford an apology for the collector, and exonerate him from any intentional violation of duty, yet it can ne^er be admitted, that they can shield him from all responsibility, when not warranted by the rules and principles of law. If any authority is nécessáry to. support- this position, it-will be found in the case of Elliot vs. Swartwout, 10 Peters, 153, where it is expressly laid down, that instructions from the treasury department cannot change the law or affect the. rights Of the parties: that the collector is. not bound to take and adopt such instructions, but is->at liberty to' judge “for' himself,-and act accordingly. And, in that case, the personal, responsibility of the collector is full]' examined; and his liability held to be governed by the fact, whether he has paid over the money to the treasury before any notice of a claim to have ,'it refunded has been given to him. And it is there settled, that where the.money has been paid over to the treasury, without any notice or objection to its being pbid over, it is to be considered a purely voluntary payment; and no suit can be maintained against the' collector to recover it back': but when, at the time of payment, notice is given to the collector that the. duties are charged too high, and accompanied with a declaration, by the party paying the money, that he intends to prosecute him to recover back the amount erroneously paid, in such case' the collector- is personally- liable. . And the Court add; that such must necessarily bé the rule, unless the broad proposition can be maintained, that no action will lie against a collector to recover back ah excess of duties paid -him, but that recourse must be had to the government for redress. Such a principle, say the Court, would be extending an exemption to. a public officer, beyond any protection sanctioned by any principle of law or sound public policy. And numerous cases ih the English Courts are referred to, where suits have been maintained against public officers, to recover back money-paid to obtain a release and discharge of goods- seized, -which were not liable to seizure: the Courts observing, that the revenue laws ought not to be made the means of. oppressing the subject. - And if. an action would lie to recover back money paid to obtain possession of goods illegally seized, the same principle will sustain an action to recover back money illegally exacted, under the penalty of' forfeiting all credit at the customhouse, due notice having been given to the collector not to pay it over tó the treasury. The true doctrine on this subject is laid down in the case of Bize vs. Dickason, 1 Term. Rep. 286. - Lord Mansfield there said the rule had always-been, that if a man has paid what the law would not have compelled him to pay, but what in equity and conscience he ought to pay; he cannot recover it back in an action for money had and received: but where money is paid under a mistake, which there was no ground to claim in conscience, the party may recover it back again in this kind of action. If this be the true rule, of which I think there can be no doubt, the plaintiff - has • a right to recover back the money in this case. It is fully proved that it was included in his bond by mistake, and was held by the collector, without any right in law or conscience to retain it; and-payment of the bond was exacted under the penalty of forfeiture of credit at the customhouse. If an action against the collector cannot be maintained to recover back money paid under such circumstances, it is difficult-to conceive a case that Would sustain an action.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the southern district of New York ; and on the points and questions on which the judges of the said Court were opposed in opinion, and which were certified to this Court for its opinion, agreeably to the act of Congress in such case made and, provided; and was argued , by counsel. On consideration whereof, it is the opinion of this Court, First, that upon the facts stated in the case, the plaintiff, Bend, is not entitled to recover back the excess pf duties paid by him on the package number 45, as mentioned in the case. And, Secondly, that silk hose is entitled to be admitted to entry free of duty,'under the act of the 2d of March, 1833, entitled, An act to modify the act of the 14th of July, 1832, and all other acts imposing duties on imports which declares that. all., manufactures of silk, or of which silk is the component material of chief value, coming from this side of the dape of Good Hope, except sewing silk, shall be free of duty. Whereupon it is ordered and adjudged by this Court, that it be so certified to the said Circuit Court; and that this cause be remanded to'ffhe .said Court, that further proceedings may be had therein according to law.


source: Caselaw Access Project

author:
Mr. Justice Story
      Mr. Justice Baldwin

license: Public Domain

text:
    Ex parte Jesse Hoyt, Collector of the Port of New York.
    Mandamus. The Supreme Court will not issue a mandamus to the district'judge of the southern district of New York, in a case in which the district judge decided that the custody of goods, wares, and merchandise, proceeded against after a Seizure by the collector of the port of New York, was in the marshal of the district, after process had issued by order of the Court against the goods. The mandamus was asked fof; after an argument before the Supreme Court, to show-that the custody of the goods was to continue in the collector of the port. The Court said: This is neither inore nor less than an application for an order to reverse the solemn judgment of the district judge, in a matter clearly within the jurisdiction of the Court; and to subsritute'gnother judgment in its stead.
    A writ of mandamus is not a proper process to correct ah erroneous judgment or decree rendered in an inferior Court. That is a matter which is properly examinable on a writ of error, or on an appeal -to the proper appellate tribunal. Nor can the Supreme. Court issue a mandamus to the District Court, on the ground that it is necessary for the exercise of its appellate jurisdiction; for if there is any appellate jurisdiction in this case, it is direct and immediate to the Circuit Court of the southern district of New York. It has been repeatedly declared by. this Court, that it will not, by mandamus, direct a judge to make a particular judgment in a suit, but will only require him to proceed to render judgment By the sixty-ninth section of-the collection act of 1799, chapter 128, the goods or merchandise seized under that act are to be put into and remain in the. custody of the collector, or such other persons as he may appoint for that purpose, tfo longer than until the proper proceedings are instituted under -the 89 th section of .the same act, to ascertain whether they are forfeited or not; and as soon as the marshal seizes the -goods, under the proper process of the Court, the marshal is entitled to the sole and exclusive custody thereof, subject to the future orders of the Court.
    ON the 23d December, 1838; an information-was-filed by the district attorney, on behalf óf the United States, in the District Court of the United States, for the southern district of New York, alleging that the goods therein described had been seized by the collector as forfeited to the use of the United States, for violation of the revenue laws, Sec. See.;, and prayed the usual process and monition of the Court, and the condemnation of the said goods.
    By a standing rule of the Court, adopted on the 19th of October, 1801, it was ordered, “ that whenever the attorney of the district shall, in behalf of .the United States, file a libel of information with the clerk of'this Court, against any vessel, goods, (Jr property seized as forfeited to the use of the United States, for breach of any act of the said United States, it shall be the duty of the clerk to cause, of course, a monition to, issue .to the marshal of the district, directing the said marshal to attach. the said vessel, goods, or property, and to detain the same in his custody, until the further order of the Court in the premises; arid to cause due notice to be given or published of such seizure.”'
    Pursuant to this rule, and' the uniform practice of the Court since its adoption, the clerk, .on filing the information in this cause, issued a monition and warrant directing the marshal to attach the property specifically described in the information, and to detain the same in his custody until the further order of the Court respecting the same, and to give notice, &c. &e.
    The collector of New York. Mr. Hoyt, denying the amthority of the marshal to execute such warrants in respect to seizures made by him, or by the officers of the customs, and to prevent the enforcement of the pr.ocess issued in this case; filed, in the District Court, the following paper:
    The United'States'

      vs.

      . Sundry packages of goods.
    Motion by Jesse Hoyt, collector of customs for the porf of New York, that the .clause of the monition issued in this cause, by which the marshal is directed to detain the goods, attached by virtue of said monition, in his custody, until the further order of .the Court respecting the same, be quashed and stricken out, on the ground that the said clause is repugnant to the 69 th section .of the act “to regulate the collection of duties on imports and tonnage,” approved March 2, 1799, and is, therefore, illegal and void; or that the said monition be so reformed and amended, that the said goods, &c., remain in the custody of the said collector, or' such person as he shall appoint for that purpose, until the proceedings commenced for the forfeiture of the said goods shall be determined, and it be judicially ascertained whether the same have been forfeited or not, as required by the said 69th section of the act above named.
    By the consent of Mr. Butler,, the district attorney of New York, the motion was submitted to the District Court for its decision. .■
    The District Court, on the 8th of January, 1839, denied the motion of the collector.
    On the 17th of January, 1839, the following agreement was entered into» by the collector of New York, and the marshal of the southern district, with the assent and approbation .of the district judge: ’ '
    It is agreed that a motion for a mandamus, to be directed to the district judge of the United States,.for the southern district of New York, commanding him—
    1. To vacate the order entered in the said District Court on the eighth day of January, instant, denying the motion of the above named relator,.referred.to in the said order; and,
    2. To grant the prayer pf said motion,' or so much thereof and in such form as this Court .shall adjudge and direct, be brought. on to be argued' in the Supreme Court of the United States, on any motion day when .counsel pan be heard; without any rule to show cause, or any application for such rule,onthe facts stated in the opinion of the district judge, delivered on'.the eighth day of January, .instant.
    Mr. Gfundy, Attorney General,
    stated that this, was, in point of fact, a controversy between the' collector of the port of New York, and the marshal of the southern district; and as the United States had no.interest in the question involved, except so far as their share of the proceeds of forfeited goods might be affected by it, in common with the parties entitled to the other shares, he would leave it to be presented by the Counsel of the parties, for the consideration of the Court,
    Mr. Gilpin, counsel for Mr. Hoyt, the collector,
    moved for the mandamus,, according to the agreement between the parties'; and contended that the District Court for the southern district of New York, ought to have amended its process, by striking out that, part of it which authorizes the marshal to take goods seized for a violation of the revenue laws into his custody, before it is ascertained .whether they are forfeited or not.
    The question is one of general concern, and the practice ought to be settled by this tribunal, so that uniformity may exist thoughout all-the ports of the United States; and the duties of two classes of responsible public functionaries be satisfactorily ascertained. But it is also a matter of individual concern to the collector and officers of the revenue. Their share of the proceeds of condemned goods is given to them as the. reward of vigilance and fidelity. To guard the rights of the citizen, however, it can only be obtained after litigation; often protracted and expensive. It is always attended with the risk of - incuring damages by improper or over-zealous conduct. Unnecessarily to diminish this share, is, therefore, a hardship to the revenue officer; and contrary to, the spirit of the revenue laws. Goods, thus seized,' often lay for long periods- before they are condemned. If they remain in the public warehouse, heavy charges are avoided; if delivered to the marshal, the cost of custody will, in many cases, exceed or equal the whole' value of the property. Again, if the collector seizes the goods without just cause, he must return them to the owner; he is answerable for so doing; to remove them from his custody, is to add to his risk, if not to subject him to actual loss. This question, therefore, is one involving very important private interests; one that the collectors and revenue officers must desire to see settled by a tribunal from which there is no appeal.
    It is not a complicated question. It rests entirely oh the proper construction of a few acts of Congress. It appears to have been the intention of Congress, as manifested in these acts, to leave all goods, wares, and merchandise in the custody of the revenue officers, until it was ascertained by a judicial judgment, whether they were forfeited or not.
    By the first collection act of 31st July, 1789, section twenty-six, (1 Story’s Laws, 24,) the positive, duty is imposed on collectors and revenue officers to seize vessels and goods liable to be forfeited for violating the revenue laws; and this provision is repeated in-the subsequent laws of the 4th August, 1790, (1 Story’s Laws, 148,) and of 2d March, 1799, (1 Story’s Laws, 633,) the last pf which is now in force. The same acts (1 Story’s Laws, 28, 155, 653,) require the collector, to cause suit to be instituted, immediately, in all such cases of seizure, and to have it prosecuted to effect, according -to the mode prescribed. by law. This mode is pointed out in the ninth section.of.the judiciary, act of 24th September, 1789, (1 Story’s Laws, .56,) which directs all seizures under laws of impost to be included in the admiralty and maritime jurisdiction of the District Court; and in the second section of the process act. of 29th September, 1789,.(1 Story’s. Laws, 67,) which directs that the forms and- modes of proceeding in cases within the admiralty and maritime jurisdiction of the District Court, shall be according to the course of the civil law. This course is the filing of a libel, and the issuing, from the Court, the proper process for placing the goods under its cognizance; giving notice' tp claimants; and ascertaining the fact of such a violation of the laws as produces forfeiture. The particular officer in whose custody the goods are" placed when under the cognizance of the Court, forms no part of the “ course of the civil law it may be one person or another, as usage, the rules of Court, or statute may prescribe. In this case it is not left to usage or judicial regulation; if it' were, they would certainly sustain the right of the collector: for it appears to be unquestioned,'that in all'ports of the United States, goods seized for forfeiture are, and from the beginning of the government always have been, left .in the public warehouse until' condemnation or release ; and that even in New York, where the clause now objected to is found in the process. The actual removal of the goods therefrom has not been required by the Court, or permitted in practice. But it is positively prescribed by law, and always has been a part of the revenue system, “that all goods, wares, or merchandise,, which shall be seized by virtue of the revenue laws, shall be put into and remain in the custody of the collector, or such other person as he shall appoint for that purpose, until the proceedings required by law are had. to ascertain whether the same are forfeited or not.” This explicit enactment is found in the law of 31st July, 1789, (1 .Story’s Laws, 24,) in that of 4th August, 1790; (1 Story’s Laws, 148,) and finally, in that of 2d March, 1799, (1 Story’s Laws, 633;) from which time no provision whatever, in conflict with it, can be found. A point that is thus so clearly established by the positive words of the statute; which- is so consonant with the whole revenue system and the interests of parties secured by that system; which is sanctioned by long, general, and unquestioned usage; would seem scarcely to need the added weight of judicial interpretation. This, however, is to be found in- support of the right of the collector, but never to the contrary. It is decided by the Cir- . cuit Court of Massachusetts, in the case of Burke vs. Trevitt, (1 Mason, 100,) that “by the act of 2d March, 1799, all goods seized under that act are to be put into and remain in the custody of the collector or his agent; that the goods are still in contemplation of law in the custody of the Court: and that the collector remains as much-responsible to the Court for the property, and as much bound to obey its decrees ánd orders, as the marshal is as to property confided to his care; the collector is, quoad hoc, the mere official keeper for the.Court.”
    In opposition to this series of statutory regulation, sanctioned by judicial decision, nothing is produced to sustain the right of the marshal to take the possession of the goods immediately after the institution of suit, except the words of the fourth section of the act of 8th May, 1792, (1 Story’s Laws, 259,) which prescribes the fees and allowances to marshals. It says, that " the marshal shall have the custody of all vessels and goods seized .by any officer of the revenue, and shall be allowed such compensation therefor as the Court may judge reasonable.” Now, not to advert to this section, as having relation to the marshal’s compensation, and to the custody of goods, which, as the executive officer of the Court; he is entitled to after it has been " ascertained whether they are forfeited or not it is sufficient to remark, that this law was passed in 1792, and that the provision now relied on was made in 1799, and has never been since changed or interfered with. If the act of 1792 ever applied to the custody before judgment, it is unquestionably repealed.
    Mr. Wright, for the marshal of the southern district of NewYork, contendéd,
    that the District Court of New York had properly decided the question before that Court.
    The 69th section of, the act-of Congress of March 2; 1799, does not repeal the first clause of the fourth section of the act of the 8th of May, 1792. ' The words of the act of the 8th of May, 1792, a.re, " That the marshal shall have the custody of all vessels and goods seized by any officer of the revenue, and shall be allowed such compensation therefor as the Court may judge reasonable.” Act for regulating process in the Courts of the United States, 2 Laws U. S. 301.
    The words of the act of 2d March, 179&.are, “That all goods, wares, or merchandise, which shall be seized by virtue of this act, shall ,be put into, and remain in. the custody of the collector, or such other person as he shall appoint for that purpose, until such proceedings shall be had as by this act are required, to ascertain whether the same have been forfeited or not;” 3 Laws U. S. 199. Section 69 of " The act to regulate the collection of duties on imposts and tonnage.”
    The custody intended in these two statutes is different; and, properly understood, the one does not conflict with the other.-. The possession and custody of the marshal is a possession and custody obtained through the power and proc/ess of the Court, and not otherwise. The possession and custody of the collector is a possession and custody obtained through the power given to him, and the other officers of the revenue, " or persons specially appointed,” by the collector, naVal officer, or surveyor, to seize property imported in violation of the revenue laws; These seizures are always without process, unless it be the process of a search warrant..
    The act of 179-9 is to regulate the collection of duties, &c. See sec, 68 and-70. Also sec. 24 and 26. of act of 1789; Also sec.-48 and 50 of act of 1790, Also sec. 27 of act of 1793.
    The possession and custody of the collector is to continue "until such proceedings shall be had as by> ’his act (the act of 1799) are required, to ascertain whether the same (the property, whatever it" may ,be) have'been forfeited or not.”
    The first of these “ proceedings,”' according to the uniform p'rac-. tice of the Court, is the preparation and fifing of the'libé!. The second “ proceeding” is, the issuing of the monition and warrant of ■attachment, in pursuance of the prayer of the iibel. The third is the delivery of the monition arid warrant to the marshal; and the fourth “ proceeding” is, the service of this process by the márshaí. And here the possession of the articles, the subject- of the information, by the marshal begins, and that of the collector ends.
    ' Are the “proceedings” tóbe carried to judgment of acquittal or condemnation, before the “custody”, of the collector can bé discharged ? Does the act itself permit this construction ? “ And the collector, Within whose district the seizure shall' be made, or for feiture incurred, is hereby enjoined to cause suits for. the same to be commenced without delay, and prosecuted to effect,” &c. 3 Laws of U. S. 221-. sec. 89. Can the collector do this without surrendering the articles proceeded against to the custody of the Court, and its officer — the “ custody” confidéd to him by the sixty-ninth section of the act of Congress? The'act declares, section 89, 3 Laws U. S. 221; “ And all ships or. vessels, goods, wares, or merchandise, which shall become forfeited in virtue of this act, shall be seized, libelled, and prosecuted, as aforesaid, in the proper Court having cognizance thereof; which Court shall cause fourteen days’ notice to be- given of such seizure and libel,” &c. Will it be contended that the “ seizure” here directed, is. any other than a seizure by process of law ?
    The Court is authorized, at any time after the property has been seized and prosecuted, upon the'application of a claimant, to appoint appraisers to value the property; to take from the claimant a bond with surety for .the amount Of the valuation; and to order the possession and custody, of the property to be surrendered to him; This is to be done before judgment of acquittal or forfeiture, and this must terminate the custody of the collector.
    Again: The marshal is directed to sell the property at auction, arid to pay the proceeds into Court, incase it has not been bonded; and judgment of forfeiture and condemnation shall pass against it. If the property is-not in the custody of the marshal during the proceedings, how can he beheld responsible-for finding it to sell?'
    If perishable property be seized, the power of the Court to order a sale, pendente lite, upon the application of the district attorney, and of the claimant, if any there be, and on the application, of the district attorney alone, if no claimant appear; cannot be doubted or denied: and yet this could not be done without putting, an end to the custody of the collector.
    Nor is the collector boririd by a .mere order of the Court, without notice, and an opportunity to show cause against its being obligatory upon him. He is not.an officer of the Court. If he is the keeper pendente-lite of the goods “seized,” he is so by the force of the statute, not by the order of the Court, or by any process issued by it, or under its authority.
    Did Congress intend, by the passage of the 69th section of the act. of 2d March, 1799, to repeal the first clause of the fourth section of the act of the 8th of May, 1792 ? The provision of .the 25th section of the act of 1789.was identical with that now existing and in force in the sixty-ninth section of the act of 1799, except the .words, “ or such other person as he shall appoint for that purpose.” That, act read: “ That all goods,, wares, and merchandise, which shall be seized by virtue of this act, shall be put into and. remain in the custody of the collector, until,” &c. 2 Laws U. S. 24. The act to regulate the collection of duties, &c.'passed J uly 31,.1789. •
    The twenty-fifth section of the last named act was superseded by the forty-ninth section of that of 1790, which is perfectly identical with the sixty-ninth 'section of the act of 1799, which superseded this. Here the words, “ or such other person as he. shall appoint for.that purpose,” are first introduced; and the whole section is literally copied in the sixty-ninth section' of the act of 179 9. 2 Latvs U. S. 163, Act of 4th Aug. 1790, “ To provide more effectually for the collection of duties.”
    Did the first clause of the fourth section of the act of 1792 repeal this forty-ninth'section of the act of the 4th August, 1790 ? • Would Congress have so legislated, intentionally; as' to have repealed that section by this clause by implication, and then have repealed this clause by implication by the re-enactment of that ?. Was the marshaL to have the custody before process ? If the sixty-ninth section of the act of 1799 is to be construed as a repeal of the first Clause of the fourth section of the act of 1792, who, between that' time and the 'presentías had the right-to the “custody” of “vessels” seized?
    If it were necessary to avoid this' inconvenient construction, would not the Court be justified in saying that, quoad the prosecution, the- marshal is the “other person” appointed by the collector to take the’custody of the property! The collector is the prosecutor. It -is, by the eighty-ninth section of this act, made his duty to prosecute “ without delay;” while the sixty-ninth section gives the custody of the property to him, “ or such other person as' he shall appoint' for that purpose;” If then the course of the “ proceedings” requires that the marshal shall have the “ custody”, of the property by-virtue of process, does he not, by the act of-prosecution, quoad hoc, make him that “ other 'person ?” Burke, vs. Trevitt, 1 Mason's Rep. 96-100, Is it policy, further than is necessary, to continue property seized' in this summary- manner, in the hands, possession, and custody cff a party in interest ? The collector is such a party, he ieing .entitled to a share of the proceéds if the property is forfeited.
    Mr; Gilpin,' in reply:—
    The argument against this motion does not deny the legal right of the collector to the custody oh goods seized, but confines it to the custody merely incident to the seizure,.and makes it expire with the commencement of proceedings for the condemnation.
    ■. Such a construction is contrary to the.plain language of the sixty-ninth section of the act of 1799. That act is the latest; subsequent to all others cited; its provisions are the actual law, no matter whether or riot they conflict with any that are previous. If they are so clear as to léave no doubt, there .is an end of the case. When the whole section is read together, there séems no room for doubt. ■ All goods, Wares, and merchandise, which shall be seized by virtue- of this act, shall be put into and remain in the custody of the collector, or such other' person as he shall appoint for that purpose, until such proceedings shall be had as by this act are required, to ascertain whether the same are forfeited or not; and if it- shall be adjudged that they are not forfeited, they shall be forthwith restored to the owner or owners, claimant or claimants thereof; ánd if any person or, persons shall conceal or buy any goods, wares, or merchandise, knowing them to be liable to seizure by this act, such person or persons shall, on conviction thereof, forfeit and pay a sum double' the amount or value of the goods’, wares, or merchandise, so coricealed or purchased.” Is it not evident that this section is meant to provide for the custody of the goods from the moment they are seized, as 'liable for forfeiture, up to that when they are. adjudged to be forfeited or restored ? Had the law meant that the custody should be changed during this interval, would it not have been so stated in.this section? It provides for their custody until “ proceedings are had to ascertain whether they are forfeited, and if they are adjudged not to be forfeited,” they are .to be given up. Is it possible to construe the sentence otherwise than as saying that the judgment of the Court is the proceeding by which the forfeiture, is to be ascertained? If the law of 1792 were not in existence, could any one doubt for an instant that this would be admitted without question ? . If so, it ought now to be admitted, for this is a subsequent statutory provision, to be ascertained from its express language; not by referente to a.previous law, which cannot control or affect it. -=
    • But the construction contended. for is not only contrary to the language of the sixty-ninth section; it is contrary to the whole, scope of the law of 1799, That law eriibrapes all proceedings relative to imported goods. It provides for' all cases that occur from the time of their arrival to the time of their final disposition, whether that be by their delivery to the importer, or by théir sale as forfeited. The duties of the collector, of the various revenue officers, and of the Court, are particularly set forth. Is it possible the custody of goods . seized and waiting adjudication should not-be.explicitly provided for ? Yet the only provision is that which" gives it to the collector. It .is possible the law intended-to give it to the marshal, when there is no provision to that effect ?. The duties of the collector in making seizure and instituting proceedings.are minutely stated; thfrwhole of these proceedings, whether by the Court, the clerk, or the claimant, are prescribed; the sale, if the goods are condemned, is, by the express words of the law, to be made by the marshal. There is no omission to assign explicitly specific duties to the several officers, in every successive stage,from the moment the goods are imported; or •to provide for each contingency that may occur in regard to them. The law of 1799 is elaborately drawn for these' purposes. Would it not then be a total violation of its whole scope, so to construe the sixty-ninth section as, in the first place, to prevent it from embracing, as its plain, tenour would do, the custody of the goods up to the time of judgment-; and then, having done this, to confer that custody on ah officer to whom it is never given in the same law, although that law was evidently intended to provide for and assign the specific duties of every officer ? Yet to this result the opposite argument necessarilyleads.
    Nor is the construction.contended for more opposed- to the express language and'general scope of these statutory provisions, thah it is to the whole spirit of the revenue system of the United States, as regards imported goods subject to impost duties. The leading and distinct feature of that'system is, to leave all goods, subject to duty, in the actual custody of the collector, until the duties are paid or secured. Up to that time the government, through its revenue officer, keeps its lien — holds its possession. The .moment a vessel arrives within the waters of the United States, the collectpr, or his subordinate officer, takes possession of the goods; he ascertains the impost duties on them; he examines whether they are liable to forfeiture; he provides warehouses for their safekeeping; if they are seized for forfeiture, he has legal proceedings instituted; if delivered to the claimant on bond, he sees that additional bonds for the duties are taken; he sells them if the duties are not paid or secured within nine months; his permit is necessary for their delivery. To allow the marshal to take them, from the public warehouse, pendente lite, is at direct variance with this whole system,, and for no corresponding benefit. It- deprives the government of its security for the duties; it substitutes an officer, having no connexion with the revenue, for him who is expressly charged with that duty, and with the preservation of the best security — the goods themselves— until that revenue is paid. The omission of this law to give to the collector the custody of vessels, as well as goods, confirms this view. It does not direct him to retain the custody of vessels seized, for they are not liable to impost dutiés; they'are not articles affording a revenue; they do pot come within the scope of the revenue system. It is true "they are subject to payments for tonnage, called duties; but these are in fact mere port charges, in no way resembling impost duties, v.r requiring the same regulations. The very omission, therefore, to include Vessels in the provisions of the act giving the custody of goods to the collector, would seem to show that those provisions were made with reference to the revenue system. If so, they can only be consistent with it, by construing them in the manner contended for-by the collector.

      The argument in support of the opposite construction, and which goes to limit the custody of the collector to the mere possession incident to the seizure, does not controvert any of these grounds. It relies solely on an endeavour to show that other provisions of the act of 17.99. áre inconsistent with the custody of the collector after the institution of legal proceedings. One point of the opposite- argument is, that the suit is to .be “prosecuted to effect;” and that this cannot be done without surrendering the goods to the custody of an officer of the Court; and that the collector is not an officer of the Court, or bound to obey its order. To this it may be answered, in the first place, that .the custody of an officer of the Court is not necessary to the effectual prosecution of the proceedings for forfeiture; those proceedings consist in the ascertainment of certain facts independent entirely of the custody of the goods, until their restoration or sale is decreed by a judgment, when the law provides the officer and the mode of effectuating thát judgment, whichever it ■may be; in the mean time it is sufficient if the law provides that the goods are safely kept by any person to answer to the judgment : but in the second place, the collector is an officer of the Court, and so constituted by this very law, s,o long as the proceedings are depending. ■ In the words of the Circuit Court of Massachusetts in Burke vs. Trevitt, 1 Masofi. 100, the collector “is the- mere official keeper of the. Court.” Another point of the argument is, that as notice must be given by the Court of the seizure of the goods, such seizure must be one made under process of the Court; the very words of the law cited to sustain this construction seem to controvert it, .for they .speak of the seizure of which notice is to be given as anterior to the libel; when it is admitted that the. only seizure on the process of the Court must be subsequent to' the libel; for on the allegations of the libel all its process is founded; Nor is it possible to sustain this. distinction by reference' to the words of the statute; if speaks constantly of seizure for forfeiture, but in every instance treats it as an act of the Collector; never of the marshal. Besides-the distinction is unnecessary to secure the rights of any persons for whose .benefit .the notice is to be given. Again, it is said that before judgment the Court- may direct the delivery of the goods'on bond, or their sale if perishable; and that either of these acts ends the collector’s cüstody,'' It is not apparent how either of these acts of the Court conflict with that custody, either to the injury of the collector, or of the security of the government; because in the first instance the act is expressly ■ authorized and it is provided that full security both for the value of the goods and the amount of duties shall be previously given; in the . other there, is certáinly. no authority given to the Court by any law, Put if it were exercised doubtless it would be attended with the same disposition of the proceeds of the sale. If therefore these acts do terminate the collector’s custody, before judgment,,it is' only by the substitution of a security or other property equal in' value, and as much under his control; this is not the cáse if the custody be taken from him by the preliminary process of the marshal’s attachment. Nor does the provision of the law, which directs the sale after condemnation to be made by the marshal, seem to conflict with the construction contended for by the collector; on the contrary the express designation of the marshal, in this instance, and •of the collector in the other, would, seem to sanction his" construction. But the sale is an executive act of the Court, and properly done by its executive officer, who is bound to make his return immediately; this is in no respect similar to the custody of the goods before condemnation.
    One point of the opposite argument remains to be noticed. It is said that'if the act of 1799 is construed as a repeal of that Of 1792, it will leave no provision for the custody of vessels; and also that the latter act must have been equally a repeal of those of-1789 and 1790, which would remove all provisions for the custody of goods before procéss — a construction, it is alleged, so inconvenient 'that .it would justify the Court, if necessary, in order to obviate it, to consider the marshal as one of the “other persons” to whom the collector might himself confide the custody. To this argument the answer is, that the aet of 1799 is not a repeal of the act of 1792, nor was.the latter a repeal of those of 1789 and.1790. The act of 1792 is an act generally explaining the duties and regulating .the fees of the marshal; the others are acts elaborately arranging the revenue system; the clause in the act of 1792 is subsidiary to the others; it refers-to such custody of goods as it may -be necessary for the marshal to have as an executive officer of the Court, but not in conflict with the revenue system or arrangements. But even if the aet of 1799 were a repeal of that of 1792, it. would not, as is Contended, leave no..provision for the custody of vessels; because they are not included among the articles placed by the former, act in charge of- the collector, and therefore as to them the act of 1792 remains unrepealed, and gives the custody to the marshal.
   Mr. Justice Story

delivered the opinion of the Court.—

This is the case of a motion made by the collector of New York for a mandamus to be directed to the district judge of the southern district of New York, under -the following circumstances. The collector, on the 2 6 th of. December last, made a motion in a certain causé of . seizure then depending before the said judge, that the clause of the common monition,' issued in that cause, by which (according to the corrimon practice in such cases,) the marshal is- directed to detain the goods attached by virtue of the said monition in his custody, until the further order of the Court, be quashed and stricken out; on the ground that the said clause is repugnant to the sixty-ninth section of the act of 1799, ch. 128, entitled, “An act to regulate the collection of duties on imports and tonnage;” or that the said monition be so reformed and' amended, that the said gOods remain in the'custody of the said collector, or such perso'n as he shall appoint for that .purpose, until the proceedings commenced for the-forfeiture of the said goods shall be determined, and it be judicially ascertained, whether the same have been forfeited or not, as required by the said sixty-ninth section of the act. The district judge after a full hearing pronounced an elaborate opinion, reviewing the whole series of laws on the subject, and refused to grant the motion. The present motion is for a mandamus to compel him to vacate the order denying the original motion of the collector.

We are of opinion that this is, in no' just sense, a case for a writ of mandamus. This Court has authority giveri to it by the thirteenth section of the judiciary act of 1789, ch. 20 to issue writs of mandamus in cases warranted by the principles and usages of law to any Courts appointed under the authority of the United States. The., present application is not warranted by any such principles and usages of law. It is neither more nor less than an application for' an order to TeYerse the. solemn judgment of the district judge, in a matter clearly within, the .jurisdiction of the Court, and to substitute another judgment in its stead. Now a writ of mandamus is -not a proper process to correct an-erroneous judgment or decree rendered in an inferior Court. That is properly matter which is .. examinable uponr a writ of error or an appeal, (as the case may require,) to the proper appellate tribunal. Neither can this Court issue the writ upon the ground that it is necessary for the exercise of its own appellate jurisdiction; for the proper appellate jurisdiction, if any in this case, is direct and immediate to'the Circuit Court for the southern district of New York'. It has been repeatedly declared by_ this Court that it will not, by mandamus, direct a judge what judgment to enter in a suit; but only will require him to proceed to render judgment. The case of the Life and Fire Insurance of New York vs. Adams in 8 Peters’ Rep. 291; and 9 Peters’ Rep. 573, is directly in point.

- But, as there appears to have -been some diversity of construction in the different districts of tire United States, of the laws on this subject, and as it is a matter ,of general ‘ concern throughout all the commercial districts, and' applicable to the daily practice of the Courts, and the .point has been fully argued, we think it right to say, that we are-of -opinion that the construction of the laws of the United States, maintained by- the district judge in his opinion, is the correct one,, to wit, that by -the sixty-ninth section of the collection act of 1799, ch. 128, the goods, wares, and merchandise seized under that act are to be put into and remain in the custody of the collector, or such other persons as he shall appoint'for that purpose, no longer than until the proper proceedings are had under the eighty- ’ nipth section of the same act to ascertain whether they are forfeited or not; and that as soon as the marshal seizes the same goods under the proper procesá of the Court, the marshal is entitled to the sole and exclusive custody thereof, subject to the future Orders of ifie Court.

The motion for the mandamus is denied.

Mr. Justice Baldwin

concurred with thé Court, in the opinion that this is not a case for a mandamus. The result of this is that the case is coram non judice. Any opinion which may be given on other points in the case cannot be binding in any case.' He was not willing to decide a,question, when it was not properly before the Court.'


author: Mr. Justice Story

text:
    Edward Hardy vs. Jesse Hoyt.
    Stockings and half-stockings made entirely of silk, imported from Liverpool in October, 1838, were exempted from the payment of duty, by the act of Congress passed March 2, 1833, entitled “An act to modify the act of the 14th July, 1832, and all other acts imposing duties on imports.”
    ON a certificate of division, of opinion from the Circuit Court of the United States, for the southern district of New York.
    This cause came before the Court on a certiorari to the Superior Court of the city of New York, the action being in assumpsit to' recover from the defendant the sum of #148 29, received by him as collector of the port of New York, for duties on an importation of silk hose. The duty was levied at the rate' of 25 per" centum ad valorem', as “hosiery,” under the 2d article of the 2d section of the act' of Congress, approved July 14th, 1832, entitled “ An act to alter and amend the several acts imposing duties on imports.” The plea of non-assumpsit was pleaded by the defendant in bar of the action.-
    It being proved that the articles imported were stockings and half-stockings,,made entirely of silk, and were imported from Liverpool, in England, in the ship St. Andrew, in the month of October, in the year one thousand eight hundred and thirty-eight, which. port of Liverpool is a port this side of the Cape of Good Hope; the following point was presented, during the progress of the trial, for the opinion of the judges, on which the judges were opposed' in opinion, viz.:
    ' Whether the said silk hose'was subject to the payment of the duty imposed on hosiery by the 2d clause of the 2d section of the act of July 14th, 1832, entitled, “An act to alter and amend the several acts imposing duties on imports.”
    Or whether, as manufactures of silk, not being sewing silk, they were exempted from the payment of duty by the 4th section of the act of March 2d, Í833, entitled, “ An act to modify the act of the fourteenth of July, one thousand eight hundred and thirty-two,-and all other acts imposing duties on imports,” which declares that all manufactures of silk, or of which' silk is the component material of chief value', coming from this side of the Cape of Good Hope, except sewing silk, shall be free.'
    Which point, upon which the disagreement has happened, under the direction of the judges of the said Court, at the' request of the counsel for the parties in the cause, was ordered to be certified unto the Supreme Court of the United States, at the next session.
    The case was submitted to the Court, on the argument in the case' of, Bend vs. 0Hoyt, by Mr. Raymond for the plaintiff, and Mr. Grundy, Attorney General, for the United States.
   Mr. Justice Story

delivered the opinion of the Court.

This case involves the second point, only, which has been just decided in the case of Bend vs. Hoyt; and,'therefore, it is only necessary to say that it will be certified to the Circuit Court for the southern district of New York, that the silk stockings and half-stockings mentioned in the case, were exempted from duty on their importation, under the act of the 2d of March, 1833, ch. 384.

This cause came on to be heard on the tránscript of .the record from the Circuit Court of the United States, for the southern district of New York, on the points and questions on which the judges of the • said Circuit. Court were opposed in opinion, and which were certified to this Court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, this Court is of opinion,. that the silk hose,, as manufactures of silk, not being sewing silk, were exempted from the payment of duty, by the fourth, section of the act of the 2d of March, 1833, entitled, “An act to modify the act of the 14th of July, 1832, and all other ac.ts imposing duties on imports,” which declares, that all manufactures of silk, or of which’silk is the component material of chief value, coming from this' side of the Cape of .Good Hope, except sewing silk, shall be free of duty.’ Whereupon, it is ordered and-adjudged by this Court, that it be so certified to the said Circuit Court, and that this case be remanded to the said. .Court, that further proceedings may be had therein according to. law. ■