author: Mr. Justice DANIEL

text:
    Washington and Sanders Taylor, Plaintiffs in error, v. John Doe, ex dem. Austin Miller.
    By the laws of Mississippi, deeds of trust and mortgages are valid, as against creditors, and purchasers only from the time when they are recorded.
    A judgment is a lien from the time of its rendition.
    Therefore, where a judgment was rendered,'in the interval between the execution and recording of a deed, it was a lien upon the land .of the debtor.
    A fieri facias, being issued upon this judgment, was levied upon the land; but, before the issuing of a venditioni exponas, the debtor died.

      It was not necessary to revive the judgment by a scire facias; but the sheriff who had thus levied upon the land could proceed to sell it, under a venditioni exponas; and a purchaser, under this sale, could not be ejected by a claimant under the deed given by the debtor.
    This case was brought up, by writ of error, from the District Court of the United States for the Northern District of Mississippi.
    It was an ejectment, brought' in the court below by Miller, against the Taylors, who were the purchasers of the property in question at a sheriff’s sale. The controversy was respecting the validity of the sale, the circumstances attending which are' detailed in the opinion of the court. The following table shows the date of the various transactions.
    Crane was the owner, and in possession of the property.
    September 21,1840, Crane made a deed of trust to Pitser Miller.
    November 17, 1840,. a judgment was given against Crane, at the suit of some third person, for $6000, in the Circuit Court of the county of Marshall.
    Upon this judgment a fieri facias was issued, returnable to the first Monday in June, 1841.
    December 7, 1840, the deed from Crane to Pitser Miller was recorded.
    April 16, 1841, the execution was levied upon the land in controversy. Whereupon Crane claimed the benefit of the valuation law of Mississippi. The property was valued at six thousand dollars, but two thirds not being bid, the papers were returned to the clerk’s office.
    February 20,1842, Crane died.
    May 30, 1842, twelve months after tne return of the papers, a writ of venditioni exponas, tested on the first Monday in March, 1842, was issued, commanding the sheriff to sell the land-
    August 17,1842, the sheriff' sold the land to the Taylors; and on the same day made them a deed for it and put them in possession.
    April 20, 1843, Pitser Miller put up the land for sale under the deed of trust from Crane, when Austin Miller became the purchase^ and received a deed from-the trustee.
    ' In October, 1847, Miller brought his action of ejectment against the Taylors in the District Court of the United States for the Northern District of Mississippi, Miller being a citizen of the State of Tennessee.
    In December, 1849, the cause came on for trial.
    On the foregoing facts, which were established by legal testimony, the court charged the jury, that if they believed, from the evidence in the case, that the venditioni exponas, by virtue of which the land in controversy was sold, and under which the defendants became purchasers thereof, was issued and tested after the death of said William Crane, and. without a revival of the judgment by scire facias, then such sale and'purchase were void, and conferred no title on defendants.
    The defendants excepted and brought the case up to this court.
    It was argued by Mr. Volney E. Howard, for the plaintiffs in error, and by Mr. Vinton and Mr. Stanton, for the defendants in error.

      Mr.'Howard, for plaintiffs in error.
    The only question involved in this case is, whether an execution sale is void when the party defendant died before the test of the venditioni exponas, and the judgment was not revived by scire facias.

    1. A judgment in Mississippi is a lien upon all property from the date of its rendition. In this case the judgment was rendered previous to the conveyance, and the purchaser took it subject to the lien and the right of the .judgment creditor to sell. Pickens v. Marlow, 2 S. & M'. 428; 3 Id. 67; 9 Id. 9.
    2. Sheriffs’ sales in.Mississippi, under executions issued after ■the death of the defendant, and without revival by scire facias, have always been held only voidable, and not void, and therefore sustained in actions of ejectment. Smith et al. v. Winston et al. 2 How. Miss. R. 607; 5 How. Miss. R. 256; 9 Smedes & M. 218.
    3. This being an important property rule in Mississippi in relation to real estate, it is submitted, that this court, under its former decisions, will follow the interpretation of the Supreme Court of Mississippi, especially the late ease of Shelton v. Hamilton, which is printed as part of this brief, so far as it relates to this principle, and the certified manuscript copy, herewith filed. 5 Craneh, 22; 2 Cranch, 87; 1 Wheat. 27 ; 2 Wheat. 316; 10 Wheat. 152; 12 Wheat. 153 ; 4 Peters, 127; 5 Id. 151.
    The counsel for the defendants ih error contended, that the decisions are uniform and almost uninterrupted, to the effect that a levy on real estate does not divest-the title of the judgment debtor, or satisfy the execution, as in the case of a levy on •personal goods. The land, therefore, descends to the heir in spite of the levy; and in order to subject it by a process tested after the' death of the ancestor, the heir must be made a party by scire facias., Erwin’s Lessee v. Dundas et al. 4 How. Sup. Ct. R. 58; 6 Ala. Rep. 658; 2 How. Miss. R. 601; 5 Id. 629; Davis v. Helm, 3 S. & M. 17; Smith v. Walker, 10 Id. 589; 3 Ala. 204 ; 7 Id. 660.
    The writ of venditioni exponas is a proceeding in personam, not in rem. It must have persons for parties. Against a dead man it is wholly void. Gwin v. Latimer, 4 Yerger, 22; Over-ton v. Perkins, 10 Id. 328 ; Rutherford v. Reed, 6 Humph. 423; Samuels v. Zackery, 4 Iredell, 377; Báden v. McKeene, 4 Hawks, 279; Woodcock v. Bennett, 1 Cowen,'711: Stymets v. Brooks, 10 Wendell, 206.
    In Hughes v. Rees, 4 Meeson & Welsby, 468, the court say the venditioni exponas is “part of the fieri faciasf “a species oí fieri facias,” “ a writ directing the sheriff to execute the fieri facias in a particular manner.”
    The act of 1840, called the valuation law of Mississippi, did’ not alter these principles. It enacted, that if lands levied on would not sell for two thirds of their appraised value, the sheriff should return the fieri facias, with all proceedings’, to the court; and if the judgment should not be satisfied after twelve months,a venditioni exponas should issue. The sheriff is not authorized to sell without this new process. It is the writ alone which vests in that officer the power to sell and convey lands. Natchez Ins. Co. v. Helm, 13 Smedes & Marsh.' 182.
    . The cases in Peck’s Rep'. 80; 4 Bibb, 345, and 2 Bay, 120, quoted as being opposed to the foregoing authorities, are not in fact such. The case of Toomer v. Purky, 1 Constitutional R. 323, would seem to be in opposition to the current of authorities ; but it must be regarded as having been decided without due consideration.
   Mr. Justice DANIEL

delivered the opinion of the court.

This was an action of ejectment, instituted in the court below by the plaintiff, a citizen and inhabitant of the State of Tennessee, against the defendants, citizens and inhabitants. of the State of Mississippi; and the facts proved in the cause and about which there appears’to have been no contrariety of opinion, were to the following effect. That the plaintiff’ and the defendants derived -their titles from one William Crane, who was at one time seized and possessed of the demised premises. That being so seized and possessed, Crane conveyed the land, on the 21st of September, 1840, to one Pitser Miller, for the purpose of securing a debt.in said conveyance mentioned; that this deed from Crane, after having been proved, was delivered to the probate ’ clerk of the county wherein the land was situated, on the 7th day of December, 1840, and was on that day recorded. That this land was afterwards duly advertised for sale under the trust above mentioned, was regularly sold in pursuance thereof, by the trustee, on the 20th day of April, 1843, to the lessor'of the plaintiff, for the sum of $1,000, and conveyed to him by the trustee by deed which was acknowledged and recorded on the day and in the year last mentioned. That the defendants were in possession of the demised premises at the commencement .of this action, and that the land in dispute was worth'$4,000.

Thte defendants then proved, that on the ,17th of November, 1840, a judgment was recovered in the Circuit Court of the county in which the demised premises are situated, against the said Crane, for the sum of $6,0p0; that, on this judgment, an execution was sued out against" the goods and chattels, lands and tenements, of the said Crane, returnable to the 1st Monday in June, 1841, which execution, on the same day on which it was sued, came to the hands of the sheriff of the county, and was by him levied on the land in controversy on the 16th of April, 1841. That thereupon the said Crane claimed the benefit of the valuation law of Mississippi, and in pursuance of that law, the land was valued at six thousand dollars, and .that being after such valuation advertised and offered for sale, and two thirds of the appraised value not having been offered for the said land, the execution and papers connected therewith were returned to the clerk’s office of the court of the county, according to law; that after the expiration of twelve months, viz., on the 30th of May, 1842, a writ of venditioni exponas, tested on the 1st Monday in March, 1842, was sued out by the clerk of the county aforesaid, directed to the sheriff of said county, commanding him to sell the land which had been levied upon, and on which the appraisement and suspension had been .taken, as before set out; that, by virtue of this writ of venditioni exponas, the said sheriff, after dulymdvertising the land, sold the same on the 17th day of August, 1842, when the defendants became the purchasers thereof, at the price of $800, and having paid the purchase-money, the sheriff conveyed to them the said land by a deed in due form of law, which was acknowledged and recorded on the 17th of August, 1842, the date of the said deed; that under this deed the defendants were in possession of, and claimed title to, the land in question.

The plaintiffs’ lessor then proved that Crane, upon an execution against whom the land had been seized, and at whose instance that execution had been stayed under the provisions of the statute, departed this life on the- 20th of February, 1842, during the twelve months’ suspension of the proceedings on that process, and before the test and suing out of the venditioni ex- ponas under which the land had been sold, and purchased by the tenants in possession.

Upon the foregoing facts, the judge charged the jury, that if they believed from the evidence, the venditioni exponas, by virtue of which the land in controversy was sold, and under which the defendants became the purchasers thereof, had been sued, out and tested after the death of Crane, and without a revival of the judgment by scire faóias, then the sale and purchase were void, and conferred no title on the tenants in possession.

With reference to the proofs in this case, and the charge pronounced thereon by the .court below, a single question only has been discussed by the counsel, and it is certainly that which must be decisive upon the judgment of this court, viz., the question involving the validity.of the proceedings upon the judgment against Crane, and the legal consequences 'flowing from those proceedings. ' By the statute of Mississippi (vide Howard & Hutchinson’s Collection, c. 34, sect. 5, p. 344,) deeds of trust aM mortgages, are valid- as against creditors and purchasers, Only from the period at which they are delivered to the proper recording officer. By the law of the same State (vide How. & Hutch, c. 47, sect. 43, p. 621,) a judgment proprio vigore operates- a lien upon all the property of a defendant from the time that it is rendered.

The trust deed from Crane to Pitser Miller, not having been recorded until after the judgment against Crane, and the sale under the trust not having been made until after the lapse of •more than -three years from the judgment, and not until two years after the levy of the execution upon the lands under that judgment, the title -derived from the sale and conveyance by the trustee, must, by the operation of the statutes above cited, be inevitably, postponed to the rights of the claimant under the judgment, unless the latter, with the proceedings had thereon, can have been rendered null by some vice or irregularity which deprived them of legal validity.

It is insisted, for the lessor of the plaintiff that such vice and irregularity are manifested by the facts which controlled the charge of the judge of the court below, viz., the suing forth of the venditioni exponas and the proceedings upon that process, after the death of the defendant in that judgment, and without any revival thereof against the representative of that defendant.

In considering the objection thus urged, it must be taken as a concession on all sides that, by the law of Mississippi, the judgment against Crane operated as a lien on his land, and that by the execution and levy, the fruits of -that judgment, the lien •had attached particularly-and specifically.upon .the ..subject of its operation. So far then as the rights of the parties to the judgment and the subject-matter to be affected by those rights were concerned, every thing was determined; all controversy was closed. The law had taken the subject entirely to itself, to be applied by its own authority and its own rules. Did the indulgence of appraisement, and the temporary suspension allowed in a certain predicament to the debtor, alter the rights or obligations of the parties, or change the status, or liability, or appropriation, of the subject which the law had already taken into its own hands ? To admit of any conclusions like these, would be to open again controversies already closed, and to wrest from the fiat of the law, the subjects it had specially and absolutely applied. The privilege of appraisement and suspension was in itself a great indulgence; it would become an opprobrium to justice, if it could be converted into a means of abrogating rights which she had expressly and deliberately conferred. The appraisement and suspension wrought no change in the relative position of the parties, it neither released nor weakened the hold taken by the law on the subject, but only completed the proceedings on the conditions which the statute had prescribed, the operation it had begun, and which it had the regular authority to fulfil. We regard the venditioni exponas in this case merely as a continuation and completion of the previous execution by which the property had been appropriated, and was still in the custody of the law, and not as» a separate, independent, much less an original proceeding, the offspring or result of a distinct and farther adjudication. This interpretation is in conformity with the meaning and purpose of the process of venditioni exponas, and with the terms of that Writ as provided in the statute of Mississippi, which runs in the following language, viz. (Vide How. & Hutch'. Col. c. 42, sect. 18.) “We command you that you expose to sale those goods and chattels, lands and tenements of A B, to the value of • which, according to our command, you have taken, and which remain in your hands unsold as you have certified to our judges,' of our Court, to satisfy C D the sum off whereof in our said court he hath recovered execution against the said A B by virtue of a judgment in the said court, &c.,” thps showing the consummation of the right of the plaintiff, the divestiture of possession of the defendant, and the transfer of that possession to the custody and possession of the law by the levy of the previous execution. Considering this to be the situation of the property, and regarding the force of the judgment and levy as not having been affected by the apprais'ement and suspension of sale, it becomes unimportant to investigate the results attempted to be deduced from the fact that the venditioni exponas was sued out after the death of the defendant Crane. According to our view this fact would have been immaterial both upon the rules of the common law and upon the provisions of the stat. of the 29 Car. 2, adopted in many of the States; for by the former the execution would have been valid if tested before the death of the defendant, and by the statute if delivered to the officer before that period; but in this instance not only did the lien which could be enforced by fieri facias exist from the date of judgment, according to the statute of Mississippi, but it was actually consummated by seizure in the lifetime of the defendant in the judgment. ' Upon the point of the validity of an execution against the personalty, if tested and sued in the lifetime of the debtor, numerous authorities might be cited from the English decisions and from the adjudications of the State courts, as well as the decision of this court in the case of Erwin’s Lessee v. Dundas et al. in 4 How. Rep. 58, in which many of the cases have been reviewed. A particular .reference to the cases upon this point, however, is not deemed important in the present instance, though it may not be altogether out of place to refer to several décisions of the Supreme Court of Mississippi ruling a doctrine which would go very far in-sustaining the title of the defendants in the ejectment, admitting that the validity of the first execution and levy on the judgment against Crane was a matter regularly open for examination. ' Thus the cases of Smith and- Montgomery v. Winston and Lawson, 2 How. Miss. Rep. 601; of Drake et al. v. Collins, 5 Id. 253; and of Harrington v. O’Reilly et al. 9 Sm. & Marsh. 216, have laid it down as the law of Mississippi in relation to real as well as personal estate, “ that a sale made under an execution which issued without a revival of the judgment is not absolutely void-but voidable only, and cannot be avoided collaterally.”

This last quesúon this court do not feel themselves now'called upon -to settle; considering the. levy under the first judgment against Crane and the lien thereby created as having been consummated, and the property placed by the proceedings in the custody of the law, they regard the title of' the defendants below derived from the judgment, the levy of the fieri facias, and sale under the venditioni exponas, as regular and valid, and one which should have been sustained. The judgment of the District Court is therefore reversed, and the cause remanded to that court to be tried upon a venire facias de novo, in conformity with this opinion.

Order.

This cause came qB to be heard on the transcript of the record from the District Court- of-the United States, for the Northern District of Mississippi, and was. argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that this cáuse be, and the same is hereby, reversed, with costs; and that this cause be, and the same is hereby, remanded to the said District Court, with directions to award a venire facias de novo, and to proceed therein in conformity with the opinion of this court.


source: Caselaw Access Project

author: Mr. Chief Justice. TANEY

license: Public Domain

text:
    Thomas Tremlett, Plaintiff in error, v. Joseph T. Adams.
    The .tariff law' of July 30,1846 (9 Stat. at Large, 42.) reduced the duties on imported coal, and was to take effect on the 2d of December, 1846. The sixth section provided thdt all goods, which might be in the public-stores on that day, should pay only the reduced duty.
    On the 6th of August, 1846, (9 Stat. at-Large, 53,) Congress passed the Warehousing Act, authorizing importers, under certain circumstances, to deposit them goods in the public stores, and to draw them out and pay the duties at any time within one year.
    But this right was confined to a port of entry, unless extended, by regulation of the Secretary of the Treasury, to a port of delivery.
    Therefore, where New Bedford was the port of entry, and Wareham a port of delivery, the collector of New Bedford (acting under the directions of the Secretary of the Treasury) was right in refusing coal to be' entered for warehousing at Wareham.
    Where an importer deposited a sum of money, as estimated duties, with the collector, which, upon adjustment, was found to exceed the true duty by a small amount, and the collector offered to pay it back, but the importer refused to receive it, the existence of this small balance is not sufficient reason for reversing the judgment of the Circuit Court, which was in favor of the collector.
    This case was brought up, by writ of error, from the Circuit Court for the District of Massachusetts.
    It was a suit brought in the Circuit Court, by Thomas Tremr lett, a merchant of Boston, against Adams, the collector of the port of New Bedford, for return of duties.
    The case is stated in the bill of executions, which was as follows:
    This was an action of assumpsit, brought against the defendant, collector for the port of New Bedford, to recover the sum of twenty-two hundred and sixty-seven dollars, seventy-seven cents, and interest, excess of duties upon sundry cargoes of coal, imported into the port of Wareham, in the collection district of New Bedford, by the plaintiff, and claimed to be illegally exacted by said defendant, and paid by said plaintiff under protest.
    At the trial of the case before his honor, Judge Sprague, the folldwing facts were admitted by the defendant, namely :
    1st. That, in the months of Séptember and October, 1846, the plaintiff, Thomas Tremlett, a merchant of Boston, imported from Pictou, in Nova- Scotia, into the port of Wareham, in the collection district of New Bedford, nine cargoes of coal, as follows, namely:

    Amounting, in the aggregate, to 1,458a chaldrons, or 1,922 tons, 8 cwt. 1 qr. 26 lbs.,, as appears by the, custom-house records. _
    These several cargoes of coal were shipped at Pictou, for the port of Wareham, a port of delivery only; and, upon the arrival at that port of the first-mentioned vessel, the brig Indus, on Or about the 3d of September, 1846, the plaintiff made application at. the custom-house in New Bedford, to the defendant, Joseph T. Adams, thén collector at said port, to enter, said coal, for warehousing, at Wareham, aforesaid, under the provisions of the act of Congress, entitled, “An act to establish a warehousing system,” &c., passed August 6th, 1846. But -the defendant refused'to allow, the plaintiff to_enter said coal, for warehousing, as aforesaid, under the act aforesaid, because said Wareham was not a port of entry, but'a port of delivery; and required him, if he would land said coal at said Wareham, to enter the same under the act for the collection of duties, passed August 30th, 1842, and to deposit $285 to cover the duties which might be found to be legally due and payable thereon. The plaintiff, in order that said vessel might be permitted to discharge her cargo, complied with this requisition, first entering the following protest in writing :
    “ I protest against paying duties, wishing to warehouse the coal per brig Indus, from Pictou;” and signed “ Thomas Tremlett, by his attorney, Jacob Parker.”
    The usual permit was then' granted by the collector, to land the coal from said vessel at said Wareham, and the coal was accordingly landed ; and, upon the arrival at said Wareham of the other cargoes of coal, by the several vessels above named, said plaintiff made like applications to the defendant, at the collector’s office at New Bedford, to enter each cargo for warehousing under said act of August 6th, Í846, at Wareham, aforesaid.
    But the defendant, in like manner, as in the case of the brig Indus, refused permission to warehouse, as aforesaid, and required the plaintiff to make the same entry as in that case, and deposit a sum of money upon the entry of each cargo, sufficient to cover the duties which might be found to be legally due and payable thereon, under the provisions of the act of August 30th, 1842, the plaintiff first entering a protest in writing, in each case, and upon the entry of each cargo, in manner and form as in the case of the brig Indus, above mentioned; and said coal was thereupon landed, and deposited in the same manner as that per brig Indus.
    2d. That all of said coal, landed at said Wareham from the above-named vessels, was deposited in one pile, and remained in the place -where it was originally deposited until after December 19th, 1846.
    . 3d. That the aggregate sum deposited with the defendant by the plaintiff, to cover the amount of duties on the several cargoes of Coal above mentioned, was $3,403, and the duties on said coal, computed under the Tariff Act of August 30, 1842, would amount to $3,364.14; that by the act of July 30, 1846, the duties on the coal in question would amount to $1,135.23.
    4th. That the brigs Indus and Mary Sophia were British vessels ;' that it has béen the invariable practice of the collectors at New Bedford, for more than twenty years, to allow foreign vessels the same rights and privileges, as to unlading and discharging their cargoes at the port of Wareham, that are granted to American vessels, and that no objection was made or inti-' mated by the defendant to the plaintiff to his lair ding the cargoes of said “ Indus” and “ Mary Sophia” at said Wareham.
    5th. That said Wareham is the principal port, in the collection district of New Bedford, where coal is imported for consumption.
    6th. That the defendant, on or before the 19th of December, 1846, delivered to the plaintiff’s attorney a statement, of the balance due to the plaintiff for money deposited, over and above the amount of duties claimed on the. nine cargoes of coal aforesaid, amounting to $38.86, and offered then to pay the same to M. Parker, the plaintiff’s attorney, which he declined to-receive; and that on the 13th of November, 1849, Mr. Adams, the defendant, tendered the same amount in specie to Thomas Tremlett, the plaintiff, at his office in Boston, which he refused to receive, and informed the defendant that in 1846 he instructed Mr. Parker, his attorney, not to receive it.

      7th. That the paper hereto annexed marked A, is a true copy of the commission under .which D. Nye acted as an officer of the revenue, from the date of the commission till after January, 1849; and that the paper marked B, annexed hereto, is a true copy of an official letter, received by D. Nye from said defendant, at or about the time it bears date, and that the papers annexed, marked C and D, are true copies of official letters received by the defendant from the Secretary of the Treasury of the United StditdS
    Boston, December 13th, 1849.
    (The paper marked A was merely an authority to David 'Nye to act as deputy-collector, inspector, gauger, weigher, and measurer, for the port of Wareham, dated October 3,1843.
    The paper marked B was an authority to Nye, from Adams, under the authority of the Secretary of the Treasury, to warehouse coal, &e., at Wareham, under the Warehousing Act of 1846. But this authority was dated August 22,1848.
    The paper marked C was dated August 27th, 1846, and was a letter from the Secretary of the Treasury to Adams, refusing to allow any article to be warehoused without the limits of a port of entry.
    The paper marked D was from the same to same, dated July 5th, 1849, merely saying that the District Attorney had been instructed, to defend Adams in the suit brought by Tremlett.)
    Upon those facts the plaintiff, by his- counsel, requested the court to rule and instruct the jury,—
    1st. That the right or privilege of warehousing goods at any ports or places within the United States is regulated by the laws of Congress, which specify the ports and places at which, and the manner in which, such warehousing shall be permitted, and that no discretion as to the selection of such ports or places, or as to the manner in which such warehousing shall be allowed, is reposed in the collector, or any other executive officer.
    The plaintiff further requested the court to rule and instruct the jury,—
    2d. That by law there is no distinction as to the exercise of such right of warehousing between ports of entry and ports of delivery, and that if the plaintiff at the time had a right, under the existing laws, to warehouse his goods inxa port of entry in any district in the United-States, he had equally a right to warehouse them at any port of delivery in such district, upon complying with the requirements of the laws regulating the warehousing of goods.
    The plaintiff further requested the court to rule and instruct the jury,— ’
    3d. That the plaintiff, bei.ng unlawfully prevented from ware? housing his goods as aforesaid, and required to pay duties upon them according to the rates established by the Tariff Law of 1842, ought to recover of the defendant' the difference between the amount of duties chargeable under the Tariff Act of 1842 and that under the Tariff Act of 1846, and interest thereon from the time of payment of the several sums.
    The plaintiff further requested the court to rule and instruct the jury, —
    4th. That if, upon the facts, the plaintiff could not recover thé whole of the difference between the amount of duties properly chargeable under the act of 1842,' and the amount properly chargeable under the act of 1846, he was entitled to recover the sum of $38.86, being the surplus in the defendant’s hands over and ábove the amount of the duty properly chargeable according to the act of 1842. But the court refused to give the instructions so prayed for; but, on the contrary thereof, did rule and instruct the jury that the plaintiff coiild not maintain his action, nor recover either of said sums of money, or any part thereof; to all which rulings, and instructions the plaintiff excepts, and prays that his exceptions may be allowed.
    Peleg Sprague, [seal.] Judge, 4*c.
    The jury accordingly found for the defendant, and upon these exceptions, the case came up to this court.
    It was argued -by Mr. Sherman, for the plaintiff in error, and by Mr. Bibb, for the defendant in error. There' was also an elaborate brief on the same side, filed by Mr. Crittenden, (Attorney-General.)

      Mr. Sherman, for the plaintiff in error, contended that the court below- erred,—
    1st. In refusing the instructions prayed for in behalf of the plaintiff below.
    2d. In the instructions which it gave to the jury.
    (The arguments of the counsel upon both sides were founded upon a minute examination of preceding laws, which it would be difficult to compress within reasonable limits, and at the same time do justice to the arguments. > The reporter, therefore, confines himself to a mere statement of the points.),
    Mr. Sherman united both the above points in his arguments.
    1st. That, under the Constitution and laws of the United States, a right existed to warehouse tfie coal at a port of delivery.
    2d. The right to warehouse at the port in-question being given by law, the plaintiff could- not be deprived of that right By any instructions issued by the Secretary of the Treasury to carry the act into effect. , Sect. 5 of Warehousing Act, 9 Stat. at Large, 53; Tracy & Balister v. Swartwout, 10 Pet. 95; Elliot v. Swartwout, 10 Pet. 153; and Greely v. Thompson, 10 How. 234, decided at the last term of the Supreme- Court.
    3d. The defendant, as collector of the customs, having deprived the plaintiff of the right to warehouse his said nine cargoes of coal at Wareham, and to enter the same, under the Tariff' Act of July, 1846, upon the payment of $1,135.13, the duty imposed on the same by that act, and exacted of the plaintiff a deposit of money, as for duties, amounting to $3,403, the plaintiff has a right to recover the difference, with interest.
    4th. Or, otherwise, if it be decided that the duties were legally due under the Tariff Act of 1842, amounting to $3,364.11, the plaintiff having deposited with the defendant the- sum of $3,403, is entitled to recover the difference, viz., $38.89, with interest. Boyden v. Moore, 5 Mass. R. 365, 369; Breed v. Hurd, 6 Pick. 356; Whipple v. Newton, 17' Pick. 168.
    On the other hand, the counsel for the defendant in error contended that the first, second, and third instructions, as mpved, were not according to the law of the case upon the facts established by the evidence, and facts pertinent to the issue, which no evidence conduced to prove, (and are therefore to be considered as not having existed.) They would, if given, have misled the jury.
    , The first and second instructions moved, misconstrue the revenue laws. Important distinctions between ports of entry and delivery, and ports of delivery only, are made by the laws. The Secretary of the Treasury had a discretion to refuse to suffer coal to be warehoused at ports of delivery only, where no collector, naval officer, or surveyor resided; where the collector of the port of entry had to discharge, at one, two, or three ports of delivery only, annexed to his collection district, all the duties of collector, naval officer, and surveyor; and where, in the opinion of the Secretary, the additional charge of a permanent officer to reside at the port of delivery only, with the rent to be paid for warehouses, would overgo the receipts from storage, and diminish the revenue at such port of delivery only.'
    The third instruction moved by the plaintiff, when applied to the facts of the case, assumes, in the first place, that the Secretary of the Treasury “ unlawfully ” prevented the warehousing of the coal at Wareham; and in the next place assumes that, because the collector obeyed the instructions ufi the Secretary, the defendant became a wrongdoer; and in the third place assumes that the defendant is liable, and, in the language of the count, became indebted to the plaintiff, and promised him to pay the difference of duty on the coal between the Tariff of 1842, and that of December, 1846.
    If the Secretary of the Treasury had been sued as the wrongdoer instead of the collector, the Secretary could have defended and maintained his instructions against warehousing coal at Wareham, a port of delivery only, as.being a lawful exercise of a discretionary power confided by the revenue laws existing before the act to' establish a system of warehousing, not impaired by that act, but confirmed by its fifth section; which discretionary power so given by the laws, was. necessary and proper to the uniformity and efficiency of the system of revenue from the customs, over which the judicial department has no control.
    The second proposition assumed by the plaintiff, that the defendant, in obeying the instructions to him as collector, by the Secretary of the Treasury, against warehousing the coal at the port of Wareham, became thereby a wrongdoer, and liable to the plaintiff for damages, would not follow, if it were conceded, that the Secretary of the Treasury, in the exercise of his functions, erred in the construction of the revenue laws, and thereupon issued wrong instructions to the collector against warehousing at Wareham.'
    The third assumption, as to the amount of the remote consequential damages, would not follow from the plaintiff’s first and second premises, if they were conceded.
    The conduct of the defendant, as collector, whether he pursued the right line of his duty, or departed from it and became a trespasser, and if a wrongdoer for what damages he became responsible, are matters to be adjudged by the laws in force defining his duties as collector at the time when the plaintiff made his protest against the conduct of the collector; not by the error of the Secretary of the Treasury, whom the law had put over him as a light, a guide, and a buckler; nor by laws which did not take effect until months after,the plaintiff’s protest; nor by the after voluntary act of the plaintiff himself, of omission or commission.
    . The fourth instruction moved relates to the sum of $38.86, twice tendered to the' plaintiff, and twice refused.
    This is certainly a small business, a little matter, a very trifling matter, wherewith the plaintiff hath elected, (after two tenders and refusals,) to engage the time and attention, first of the Circuit Court of the United States, by an action originally brought therein, whose cognizance, as defined by law, is intended to be limited to cases “ where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars,” and secondly, the time and attention of this court, whose appellate jurisdiction in such like cases' is, by- the-law. intended to be confined to matters in dispute exceeding the sum or value of two thousand dollars, exclusive of costs.
    If the plaintiff had truly stated his said demand, for the said sum of thirty-eight dollars eighty-six cents, neither the Circuit Court nor this court could have held cognizance of the plea. But by refusing this sum when tendered, and by mixing this matter with his protest about the warehousing, and, by stating his demand at five thousand dollars, he has compelled the Circuit Court and this court to hold cognizance of his complaint.
    If the' jury had found for the plaintiff the sum of thirty-eight dollars eighty-six cents, then, according to the twentieth section of the Judiciary Act of 24th September, 1789, “ he shall not be allowed, but, at the discretion of the court, may be adjudged, to pay costs.”
    When, upon the facts given in evidence, the plaintiff moved this fourth instruction, that “ he was entitled to recover the sum of §36.86,” he thereby confined and dwindled his demand to that sum; the court was called to adjudicate as to that sum; to lend its' assistance to the plaintiff to recover that sum and no more; a matter far beneath the cognizance of that court.
   Mr. Chief Justice. TANEY

delivered the- opinion of the court.

This is an action brought by the plaintiff against the collector of the port of New Bedford, for refusing to permit the plaintiff to enter for warehousing at Wareham sundry cargoes of coal, imported from Pictou, Nova Scotia, which were shipped for Wareham, and arrived in the months of September and October,' 1846. Wareham was a port of delivery in the collection district of which New Bedford was the port of entry;' and the collector, in refusing to permit them to be entered for warehousing at Wareham, acted under the directions of the Secretary of the Treasury. • The plaintiff was required to pay in cash the duties imposed by the act of 1842, before the permit for landing at Wareham was granted. And this suit is brought to recover the difference between the duties paid and the duties to which the coal would have been liable if it had been warehoused at' Wareham and remained in store as the plaintiff desired until the reduced tariff went into operation. The case depends upon the construction of the Warehousing Act of August 6,1846.

The law is framed in very general terms, referring to other laws for some of its regulations ; and containing but few specific directions as to the manner in which it should be carried into execution. And. it authorizés the Secretary of the Treasury to make from time to time such regulations, not inconsistent with, law, as might be necessary to give full effect to the provisions of the act, and secure a just accountability under it. This mode of legislation has naturally led to some ambiguity, and has given rise to this controversy.

The act went into operation on the'day it was approved by the President. And the plaintiff insists that, under its provisions, he was entitled, as soon as it passed, to land his goods at the port of delivery upon bonding for the duties .; and to have them placed there in store in order to avail himself, if he thought proper, of the reduced tariff, which took effect on the 2d of December, in the same year. The 6th section of the Tariff Act of July 30,1846, which passed a few days before the Warehousing Act, of which we are now speaking, provided that all goods imported after the passage, of that law, and remaining in the public stores on the 2d of December following, when the act went into operation, should be subject to no other duty upon entry thereof than if they had been imported after that day.

In expounding the Warehousing- Act, it must be borne in mind, that it was not passed for the purpose of enabling the importer to avail himself of the reduced rates of duty. It is a part of the general and permanent system of revenue; and its evident object is to facilitate and encourage-commerce, by exempting' the importer from the payment of duties, until he is ready to bring his goods into market. The opportunity it afforded of taking advantage of the reduced rates of duty was an accidental circumstance arising from the time at which it happened to be passed. The provisions in the 6th section of the Tariff Act of July 30,1846, had no reference to goods entered for warehousing. There was.no law at that time which authorized the importer so to enter them. And although the Warehousing Act, which passed a few days afterwards, enabled the importer, by warehousing his goods, to take the benefit of the provisions of-the previous law, yet it was not passed for that purpose. And it must be regarded and interpreted, not as.an act passed for a temporary purpose, or to meet a change of tariff, but as one intended to be equally applicable to goods imported after the 2d day'of December, as to goods imported between the 30th of July and that time. The plaintiff had the same legal rights in this respect at the time he offered to enter his coal at Wareham as an importer of the present day, and nothing more; and no greater advantages were intended to be given him'by the Warehousing Act.-

Previous to the passage of this act no goods, chargeable with cash duties, could be landed at the port of delivery until the duties were paid at the port of entry. The importer had no right to land them anywhere until they had passed through the custom-house. And they could not be landed at the port of delivery without the permit of the proper officer at the port of entry. This permit in effect delivered them to. the owner to be landed under the usual inspection, and sold and disposed of as he thought proper; and the permit could not be granted unless the duties had been paid.

There could, therefore, but rarely be any necessity for public stores or warehouses at a port of delivery, before the passage of the Warehousing Act,

It was otherwise at ports of entry. The importer himself had no right: ,to land them even at a- port of entry before the duties were paid.'' But when the entry at the custom-house was imperfect, for.yvant of the proper documents, or where the goods were damaged in the" voyage, and the duties could not be immediately ascertained; or the cash duties were not paid after the forms of entry had been complied with; in all of these cases the collector was directed, by existing laws, to take possession of such goods, and -place them in public stores, and retain them untir the duties were paid. And as all of this was to be done at the port of entry, public stores were necessary at such ports,; and they had acfcordingly been provided for by law, before the passage of the Warehousing Act.

Now, the Warehousing Act, so far as the landing and storing of goods is. concerned, places goods entered for warehousing upon the same, footing with goods upon which the duties have not been paid. It provides, that in all cases of failure or neglect to pay the duties within the period, allowed by law to the importer, to make entry thereof, or whenever, the owner,' importer, or consignee, shall make entry for warehousing in the manner directed in the act, the collector shall take possession of the goods and deposit them in the public stores; or in other stores to be agreed on by the collector or other chief officer of the port, and the importer of the goods to be secured in the manner provided for in the act of 1818 relative to the warehousing of wines and distilled spirits. The warehoused goods, therefore, are to be taken possession of by the same officer and stored, and treated like goods upon which the importer had failed to pay duty. And, as the latter were necessarily to be taken possession of at the port of entry, and accustomed to be stored there, the natural inference from this association is, that the law contemplated the storage of warehoused goods at the same place, and did not mean to give the importer a right to store them at any port of delivery to which he .might have chosen to ship them. The Warehousing Act gives him no peculiar privileges over the importer of goods directed to be placed in the public stores because the duties were not paid; nor any greater fight to select for himself the place of storage.

The 2d section of the act strengthens this construction of the 1st section. It provides that warehoused goods, deposited in the public stores in the manner provided in the 1st section, might be withdrawn and transported to any other port of entry; and directs that the party should give bond for the deposit of them in store, in the port of entry to which they shall be destined. The use of- the words “ ports of entry,” in this provision, implies that they were to be stored in a port of that description in the first instance, and to be deposited again in a like port, if they were transported coastwise.

Again, the directions as to the manner in which they are to be secured while they remain in the store, and to be delivered to ''the party when he is entitled to receive them, leads to the same conclusion. They cannot, be withdrawn without a permit from the collector .and naval officer of the port at which they are stored. And as there is no naval officer appointed or needed at a port of delivery, this provision would appear to have contemplated the storage at a port of entry and not of delivery. There are certain expressions in the law which may be applied to a port of delivery as well as of entry. But they were introduced for the purpose of authorizing the Secretary of the Treasury, under the power to make regulations, to have suitable storehouses to provide at a port of delivery, when the nature and importance of the trade might require it.

The act of 1799, c. 22, § 21, (1 Stat. at Large, 642,) authorizes ■the collector, with the approbation of the principal officer of the Treasury Department, to employ proper persons as weighers, gaugers, .measurers, and inspectors at the several ports within his district;- and also, with the like approbation, to provide, at the publie expense, storehouses for the safe-keeping of goods, and such scales, weights, and measures, as may be necessary. The secretary and collector were, therefore, under this law, to determine where storehouses were necessary; and might provide-them .at. a port of delivery, if they believed-the interests of the public and of commerce demanded it. But the law confided it to their discretion, to determine whether they should or should not be provided at any particular port of delivery; and the "Warehousing Act has not changed the law in, this respect, and does not require that there should be public storehouses at every port of delivery at which the importer might wish to warehouse his goods.

The record shows, that after this transaction took place, the secretary did authorize goods to be warehoused at W.areham. But the question before, us is not whether he might not have authorized it before;" but whether, independently pf any regulation by the secretary, the importer had not an absolute right, as soon as the law was passed, to land his goods at the port of delivery to which they were destined, and store them there, upon giving the bonds which the law requires. We think he had not, and that the right, given under the Warehousing Act, 'was* confined to a port of entry, unless extended, by regulation of the secretary, to a port of delivery.

Indeed, the execution of the law would be impracticable under the construction contended for by the plaintiff For it directs that the bond to be taken on the entry for warehousing, shall be prescribed by the secretary; and it is made his duty to make regulations to carry the law into full effect, and secure a just accountability. These things required time; and the collector could not act without them. Yet, if the plaintiff’s construction be the correct one, his right to enter his coal for warehousing at Wareham was as absolute the day after the law passed as it was when he offered to make the entry. For if the law gave him the right, independently of any regulations by the secretary, he was not bound to wait until they were made and the form of the bond prescribed; but might have demanded bis rights on the 7th of August, and sued the collector if he failed to obtain them. It. is evident that Congress could not have intended to confer upon the importer this right. Nor can the law receive that construction without rejecting the provisions which authorize the secretary to prescribe the form of the bond, and to direct the manner in which the act was to be carried into effect. These provisions, in relation to the power of the secretary, are important, and were intended to guard the public, against any abuse of the privileges which the Warehousing Act; gave to the importer.

. Moreover, many of the ports of delivery are at places where the trade is trivial and unimportant, and where it would be difficult to procure suitable storehouses for a cargo unexpectedly arriving and demanding to be warehoused. In many of them there are not a sufficient number of officers to superintend the landing and warehousing of a cargo of an ordinary ship, and guard it afterwards from being improperly withdrawn.- The Warehousing Act does not authorize the appointment of additional officérs, at ports of delivery, nor provide for any additional expenses to be incurred by the public in carrying it into execution. And if the collector is bound to grant a permit to land the goods, at any port of delivery which,, the importer may select for his shipment, it is easy to foresee' the. abuses to which it would lead; and the frauds that might be practised under it, Congress cqn hardly be presumed, from any general or ambiguous language, to have intended, in this law, to dispense with all the safeguards which had been so carefully provided and preserved in previous acts. We think neither its words nor .its manifest object will justify such a construction, and that the collector was right in refusing the permit to the plaintiff to land and warehouse the coal in question at Wareham.

As regards the small balance of the plaintiff’s deposit which remained in the collector’s hands after the payment of the legal duties,’ it is no ground for reversing the judgment of the Circuit Court. The defendant offered to pay it, but the. plaintiff! refused to receive it. The money placed in the hands of the collector for the estimated- duties was a deposit in trust for the United States for the amount that should be found actually due;. and for the plaintiff for the balance, if any should remain after the duties were paid. And as the plaintiff refused to receive this balance when tendered, it continues a deposit in the hands of the defendant with the plaintiff ’« consent; and he eanno.t subject the collector to the costs and expenses of a suit until he can show that it is wrongfully withheld.

The judgment of the Circuit Court is therefore affirmed with costs.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Massachusetts, and was argued by counsel, on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, affirmed, wi til'costs.