text:
United States v. Sixty-Seven Packages of Dry Goods/Opinion of the Court

This is a writ of error to the circuit court of the United States for the eastern district of Louisiana.

A libel of information was filed in the district court, by the collector of the port of New Orleans, on behalf of himself and the United States, for the condemnation and forfeiture of sixty-seven packages of goods, on account of an alleged fraud upon the revenue, charging, among other things, in the information, that the goods were entered at the custom-house upon the production of an invoice, in which they were invoiced at a less sum than the actual cost thereof at the place of exportation, with a design to evade the duties.

On the trial, after evidence was given on the part of the libellants tending to prove the facts charged in the information, the court charged the jury, that the 66th section of the duty act of 1799 was repealed by force of subsequent statutes, and that, at present, there was no law in existence providing for a forfeiture of the goods for the causes set forth in the libel. The jury found, accordingly, for the claimant.

This ruling was carried up on error to the circuit court, where the judgment was affirmed.

The 66th section of the act of 1799, so far as it is material in the case, is as follows:--

'That if any goods, wares, or merchandise, of which entry shall have been made in the office of a collector, shall not be invoiced according to the actual cost thereof at the place of exportation, with design to evade the duties thereupon, or any part thereof, all such goods, &c., or the value thereof, to be recovered of the person making the entry, shall be forfeited.'

It was held, in the case of Wood against the United States, 16 Pet. 342, which was an information founded upon this section, that it was then in force, and the property there seized was condemned under it. The goods in that case had been entered at the custom-house in 1839 and 1840. The duty act of 1842, which has since been passed, is supposed to operate a repeal of the section, by implication.

The 19th section of that act is mainly relied on, which is as follows:--

'That if any person shall knowingly and wilfully, with intent to defraud the revenue of the United States, smuggle or clandestinely introduce into the United States, any goods, &c., subject to duty by law, and which should have been invoiced, without paying or accounting for the duty, or shall make out, or pass, or attempt to pass, through the custom-house, any false, forged, or fraudulent invoice, every such person, his, her, or their aiders and abettors, shall be deemed guilty of misdemeanor, &c., punishable by fine and imprisonment.'

The invoice mentioned in the two sections (the 66th and 19th) is a very important document in the entry and passing of goods at the custom-house.

The 36th section of the act of 1799 made it the duty of the person making the entry to produce to the collector the original invoice, in the same state in which it was received; and also, to make oath that it was the true, genuine, and only invoice received, and was in the actual state in which it was received, and that the deponent did not know of any other invoice or account of the goods different from that produced. And the 1st section of the duty act of 1818 further provided, that no goods subject to duty should be admitted to entry, unless the original invoice of the same was presented to the collector. The same provision is found in the 1st section of the act of 1823.

The 4th section of the last act also prescribes the oath substantially like the one in the act of 1799, above referred to, except somewhat enlarged.

The 4th section of the act of 1830, in the case of goods subject to duty, provided, that if any package should be found to contain an article not described in the invoice, the same should be forfeited. This provision is modified by the 21st section of the act of 1842, which saves the forfeiture, if the appraisers shall be of opinion that the omission in the invoice was not with a fraudulent design.

This brief reference to the several acts is sufficient to show the great importance attached to this document, in securing the collection of the proper duties upon foreign importations, and the great care that has been taken to insure the production to the collector of the true, genuine, original one, and that it should be in the actual state and condition in which it was received by the owner, consignee, or agent making the entry.

Now, the 66th section of the act of 1799, dealing with this document, forfeits the goods of the party entered at the custom-house, 'if not invoiced according to the actual cost thereof at the place of exportation, with a design to evade the duties.'

The 19th section of the act of 1842 subjects the party to a misdemeanor, and punishable as such, concerned in making an entry, who, with intent to defraud the revenue, 'shall make out, or pass, or attempt to pass, through the custom-house, any false, forged, or fraudulent invoice.'

The former section has reference to the invoice so far as material to determine the forfeiture, simply with a view to the actual cost of the article at the place of exportation, without regard to the question whether the document itself is the true and genuine one or not. If the goods described in the invoice are invoiced under the cost value, with the design stated, the forfeiture takes place. The object is to prevent frauds upon the revenue in passing goods through the custom-house, by means of this device, at an undervaluation.

The latter provision is different, and has reference to the frauds that may be committed in passing or attempting to pass the goods upon the production of invoices not genuine; not the true, original invoices, but those made out for the occasion with a design to impose upon the collector and other officers.

The acts of 1799 and 1823 sought to prevent this species of fraud, by requiring the production of the original invoice, with the oath of the party superadded, that it was the true, genuine, and the only the received, and in the actual state in which it was received. This, although the party was subjected to the penalty of perjury, in case of false swearing, seems not to have afforded the necessary protection; and the present provision, for the first time, has been enacted, subjecting the person to a misdemeanor who shall, with intent to defraud the revenue, 'make out or pass, or attempt to pass, through the custom-house any false, forged, or fraudulent invoice,' manifestly directed against the production and use of simulated invoices, and those fraudulently made up for the purpose of imposing upon the officers in making the entry.

The whole scope of the section confirms this view. It first makes the smuggling of dutiable goods into the country a misdemeanor; and, secondly, the passing or attempt to pass them through the custom-house, with intent to defraud the revenue, by means of false, forged, or fraudulent invoices; the latter is an offence which, in effect and result, is very much akin to that of smuggling, except done under color of conformity to the law and regulations of the customs.

In the interpretation of our system of revenue laws, which is very complicated, and contains mumerous provisions to guard against frauds by the importers, this court has not been disposed to apply with strictness the rule which repeals a prior statute by implication, where a subsequent one has made provision upon the same subject, and differing in some respect from the former, but have been inclined to uphold both, unless the repugnancy is clear and positive, so as to leave no doubt as to the intent of congress; especially in cases where the new lay may have been auxiliary to and in aid of the old, for the purpose of more effectually guarding against the fraud. This is the doctrine to be found in the case of Wood v. the United States, already referred to, and in several subsequent cases. 3 How. 197; 16 Ib. 150.

It has been supposed that the 8th section of the present act of 1846, which imposes an additional duty of twenty per centum for undervaluation, works a repeal of the 66th section of the act of 1799. But this provision has been part of the revenue system ever since the act of 1818, with the exception of a few years, and has never been understood to have the effect claimed. On the contrary, the section has been regarded as in force, and has been in practical operation during all this time, notwithstanding the imposition of other additional duty. It was so considered in the case of Wood v. The United States. This additional duty is imposed in case the appraised value exceeds the invoice price of the goods ten per centum, irrespective of the question of fraudulent intent. Undoubtedly, if this additional duty has been levied upon the goods by the government, it cannot forfeit them under the 66th section; but, if the collector is satisfied that the undervaluation in the invoice has been made with intent to evade the duties, instead of levying the additional duty, a forfeiture may by declared. It will be observed, also, that the forfeiture may be declared in cases of undervaluation where it is less than ten per centum of the invoice price, provided the fraudulent design exists.

We are satisfied that there is no provision in the act of 1842, or in any of the duty acts, operating as a repeal of the 66th section of the act of 1799, but that it still exists in full force and effect. The judgment of the court below must therefore be reversed, and record remitted for further proceedings, in conformity to this opinion.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the eastern district of Louisiana, 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 reversed, and that this cause be and the same is hereby remanded to the said circuit court for further proceedings to be had therein in conformity to the opinion of this court.


text: Talk:United States v. Sixty-Seven Packages of Dry Goods/Opinion of the Court

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text:
United States v. Nine Cases of Silk Hats

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

It was similar, in its circumstances, to the case of the United States v. Sixty-seven Packages of Dry Goods, and argued by Mr. Cushing, attorney-general, for the United States, at the same time.

Mr. Justice NELSON delivered the opinion of the court.


text: Talk:United States v. Nine Cases of Silk Hats


text:
United States v. Nine Cases of Silk Hats/Opinion of the Court

This was a libel of information, filed in the district court of the United States v. Nine Cases of Silk Hats, for condemnation and forfeiture, on the allegation that the entry of the goods at the custom-house, was made upon an invoice, in which they were invoiced at a less sum than the actual cost at the place of exporation, with a design to evade the duties.

After hearing the evidence, the court instructed the jury that the 66th section of the act of 1799, which imposed a forfeiture of the goods in question, had been repealed, and was not in force at the time of the entry at the customs; and gave judgment for the claimant. On a writ of error to the circuit court, this judgment was affirmed.

For the reasons given in the case of the United States v. Sixty-seven Packages of Dry Goods, the judgment must be reversed, and the record remitted to the court below for further proceedings, in conformity to the opinion of this court.

Mr. Justice CAMPBELL dissented.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the eastern district of Louisiana, 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 reversed, and that this cause be and the same is hereby remanded to the said circuit court for further proceedings to be had therein in conformity to the opinion of this court.


text: Talk:United States v. Nine Cases of Silk Hats/Opinion of the Court


text:
United States v. One Package of Merchandise

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

It was similar, in its circumstances, to the case of the United States v. Sixty-seven Packages of Dry Goods, and was argued by Mr. Cushing, attorney-general, at the same time.

Mr. Justice NELSON delivered the opinion of the court.


text: Talk:United States v. One Package of Merchandise


text:
United States v. One Package of Merchandise/Opinion of the Court

The libel of information was filed, in this case, in the district court of the United States for the eastern district of Louisiana, for the condemnation and forfeiture of one package of goods; the entry, as charged, having been made upon an invoice in which the goods were invoiced under their actual cost value at the place of exporation, with a design to defraud the duties. After the evidence was heard, the jury, under the instructions, found a verdict for the plaintiffs.

The court afterwards arrested the judgment for the plaintiffs, and directed a judgment for the claimants, on the ground that the 66th section of the act of 1799 had been repealed; which judgment was affirmed, on error, by the circuit court.

For the reason given in the case of the United States v. Sixty-seven Packages of Dry Goods, the judgment below must be reversed, and the record remitted to the court for further proceedings, in conformity to the opinion of this court.

Mr. Justice CAMPBELL dissented.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the eastern district of Louisiana, 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 reversed, and that this cause be and the same is hereby remanded to the said circuit court for further proceedings to be had therein in conformity to the opinion of this court.


text: Talk:United States v. One Package of Merchandise/Opinion of the Court


text:
United States v. One Case of Clocks

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

It was similar, in its circumstances, to the case of The United States v. Sixty-seven Packages of Dry Goods, and was argued by Mr. Cushing, attorney-general, at the same time.

Mr. Justice NELSON delivered the opinion of the court.

title: United States v. One Case of Clocks


text: Talk:United States v. One Case of Clocks


text:
United States v. One Case of Clocks/Opinion of the Court

This is a libel of information, filed in the district court of the United States for the eastern district of Louisiana, for the condemnation and forfeiture of one case of clocks, for entry of goods upon an invoice, in which the goods were invoiced at a sum less than the actual cost value at the place of exportation, with a design to evade the duties.

The jury found a verdict for the plaintiff, upon which a judgment was rendered; but, afterwards, the court arrested and set aside the judgment, and gave judgment for the claimants, dismissing the libel, which was affirmed on error in the circuit court.

For the reasons give in the case of The United States v. Sixty-seven Packages of Dry Goods, the judgment of the court below must be reversed, and the record remitted for further proceedings, in conformity to the opinion of this court.

Mr. Justice CAMPBELL dissented.

This cause came on to be heard on the transcript of the record from the circuit court of the United States for the eastern district of Louisiana, 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 remanded to the said circuit court for further proceedings to be had therein in conformity to the opinion of this court.


text: Talk:United States v. One Case of Clocks/Opinion of the Court


text: Lawrence v. Minturn

title: Lawrence v. Minturn


text: Talk:Lawrence v. Minturn

title: Talk:Lawrence v. Minturn


text:
Lawrence v. Minturn/Opinion of the Court

THIS was an appeal from a decree of the district court of the United States for the northern district of California, sitting in admiralty. Minturn libelled The Hornet, for the non-delivery of two steam-boilers and chimneys, shipped on board of that vessel in the port of New York, and consigned to the libellant.

Alexander M. Lawrence and seven others intervened, as claimants, and after a hearing upon the pleadings and profits, the district judge decreed that the libellant should recover $25,275, and costs. From this decree the claimants appealed to this court.

The case is stated in the opinion of the court.

It was argued by Mr. Cutting, for the appellants, and by Mr. Lord, for the appellees.

Mr. Cutting, before stating the points of law which arose in the case, examined the evidence, from which he contended that the following positions were established:--

1. That the ship Hornet was as good a ship as sailed out of the port of New York, at the time she commenced this voyage, and as well qualified as any vessel of her size to carry the boilers in the manner in which they were shipped.

2. That the contract of affreightment was, that the boilers should be carried on deck, in the manner in which they were carried.

3. That the boilers were stowed, and secured in that position, in the best and safest manner; and that the residue of the cargo was well stowed with regard to carrying the boilers on deck. She was in good sailing trim, and steered very well.

4. That in the judgment of all the experienced navigators who have testified on this subject, without a dissenting voice, the ship was, at the time of leaving the port of New York, capable of carrying the boilers, as a deck load, to San Francisco. That the shipper and his agents assented to, and acquiesced in, that judgment. And no evidence has been furnished that any person entertained, much less expressed, a doubt of the success of the voyage.

5. That it would not have been possible to carry the boilers to San Francisco, or to have retained them longer on the ship, consistently with the safety of the lives of those on board.

The experience acquired in the first storm clearly established this.

6. That the boilers were thrown overboard as soon as it was practicable, after the ship encountered the gale.

7. That this jettison was with due deliberation, and an act of necessity.

8. That the ship-owners were not guilty of any negligence, even the slightest, either in undertaking to transport these goods on deck, or in the construction, equipment, or navigation of the ship, or in the stowage of these goods, or in the manner of stowage of the rest of the cargo in reference to these goods, or in the quantity of cargo taken in below deck.

I. The libellant had no right, merely as consignee, to institute this action in his own name.

II. The boilers were lost by one of the excepted perils, even if the ship be held to its responsibility as a common carrier.

1. The carrier is not responsible for the loss by jettison of goods laden on deck with the assent of the shipper, when such jettison is necessary to save the vessel and the crew. Gould v. Oliver, 4 Bing. N. C. 142, per Tindal, C. J.; Case cited by Coke, in Bird v. Astcock, 2 Bulst. 280; Approved Sto. on Bail. § 531; Mouse's Case, 12 Coke, 63; Gillett v. Ellis, 11 Ill. R. 579; Johnston v. Crane, 1 Kerr. 356 (New Brunswick Rep.); Smith v. Wright, 1 Caines's R. 43, and note (a,) 45; Crosby v. Fitch, 12 Conn. 419, 420; Da Costa v. Edmunds, 4 Camp. 142.

2. The loss occurred by dangers of the seas, within the meaning of the bill of lading. The gale of the 26th and 27th of August, was a severe gale, accompanied by a very heavy cross sea, which strained the ship, opened her seams, and caused her to leak badly; under these circumstances the weight of the boilers caused the decks to settle, and jeoparded the safety of the vessel. Although she was capable of withstanding ordinary weather, it was manifest that she could not outlive another gale.

3. The loss could not have been guarded against, or foreseen by any ordinary exertion of human prudence or skill. The shipper and the ship-owners, in this respect, concurred in the judgment that the ship was capable of carrying this extraordinary deck load, and all proper precaution were adopted, in order to insure its safety.

4. The circumstance that human agency intervened to cast the boilers into the sea, makes it none the less a loss by perils of the seas. Hagedorn v. Whitmore, 1 Stark. 157; Barton v. Wolliford, Comb. 56; Gillett v. Ellis, 11 Ill. 579; Smith v. Scott, 4 Taunt. 126.

III. The shipper having contracted for the shipment of the boilers on deck, cannot, in the absence of fault or negligence in the carrier, recover for a loss by perils incident to that mode of transportation. Gould v. Oliver, Tindal, C. J., 4 Bing. N. C. 142; Baxter v. Leland, Blatch. R. 526; Clark v. Barndwell, 12 How. 272, 281-2; Shackleford v. Norton, 9 Louisa. R. 33, 39; Angell Car. §§ 215, 217.

It was by one of that class of perils that the boilers were lost.

IV. The ship-owners were not common carriers as to these goods; they were special bailees under a particular contract, and in respect to this transaction, are to be treated as private carriers, who incur no responsibility beyond that of an ordinary bailee for hire. They are answerable only for misconduct or negligence, or the want of that diligence which prudent men commonly take of their own goods. Special Contract, 5, 66; ''N.J. S. Nav. Co. v. Merchants' Bank,'' 6 How. 344, 382; Citizens' Bank v. Nantucket Steamboat Co. 2 Sto. R. 16, 34, 36; Allen v. Sewall, 6 Wend. 335, 355, 364; Wells v. The Steam Navigation Co. 2 Comstock R. 208; Edwards v. Sherratt, 1 East. R. 604, 611; ''Thomas v. Prov. and Bos. R. R. Co.'' 10 Metc. 472; Angell on Car. §§ 45, 46, 54, 89; Sto. on Bail. § 442.

V. The ship-owners did not warrant or insure that the ship should be competent to carry the boilers on her deck to San Francisco.

VI. The libel does not aver unseaworthiness, incapacity, or fault of the ship, or any improper stowage of cargo, or any overloading of the ship; and on the contrary it alleges the failure to deliver, to have been caused solely by the mere carelessness, unskilfulness, and misconduct of the master and mariners. The proofs and the right to recover must be confined to the allegations. 1 Car. and Payne, 251; Houseman v. Schooner North Carolina, 15 Pet. 50.

This objection was taken at the trial, but the court ruled, that if the loss was occasioned by the overloading of the ship, proof might be given of that fact, and the libel sustained. Even if this ruling was correct, no proof of the vessel being overloaded was given; nor was she overloaded. The lading of the boilers on deck made the ship uneasy; but it was the shipper, and not the master and mariners, who caused them to be placed there, and the latter cannot be charged with carelessness, unskilfulness, or misconduct, on that account.

VII. The damages decreed to the libellant are excessive.

Mr. Lord, for the appellee, stated the libel, and then said,

The ship, in answer, sets up two matters in defence:--

1. That the shipper, in making the freighting contract, deceived the agents of the ship, by representing the weight at about forty tons, when, in fact, it is alleged to have exceeded fifty tons, in the shipper's knowledge, on which representation the agents relied.

2. That the ship having sailed from New York, on the 23d August, 1851, experienced a storm at sea, near the edge of the Gulf Stream, on the 26th of August, in which the ship labored severely; the gale continued twenty-four hours; the ship was very uneasy under her deck load, and on the 29th August, considering the ship in danger, and she leaking badly, the master determined, after the gale was over, to throw over the deck load, to avoid the dangers which might arise in the next gale which might occur. And that, on the 6th of September, the preparations were begun for throwing over the steam machinery, which was accomplished by the 12th September. She afterwards experienced the Equinoctial gale, commencing September 17th, and continuing until the 26th, in which the ship, if she had not been relieved of her deck load, would, it is averred, have foundered at sea, or leaked so as to damage all the cargo.

First Point. As to the pretended misrepresentation, no stress appears to have been laid on it in the court below. In fact, the freight contract was made on the 19th July, 1851, while the machinery in question was in the course of construction, and its weight unknown to the libellant. It was made by Cunningham, Belknap, and Co., and finished between the 1st and 19th August.

Second Point. The next question involved is, whether the jettison was owing to the perils excepted in the carrier's engagement, namely: dangers of the sea, fire, and collision. The two latter are to be laid out of view, as having no bearing on the case; and the only question is, whether the jettison was caused by dangers of the sea.

1. The contract of the carrier in its nature requires the utmost care and diligence on his part, and also a ship fit and capable of performing the engagement, unless defeated in so doing by vis major. Although perils of the sea be the immediate cause, still, they are not within the exception, unless they have been encountered after all the obligation of the carrier has been performed. Thus, if badly stowed, and thereby exposed to sea perils in a storm, or if the ship be unfit for the voyage, the occurrence of sea accident to cargo thus exposed to them, will not discharge the carrier.

As the obligation of the carrier is, by his own contract, he would be liable on the principles of law, notwithstanding all accidents, unless he had expressly excepted them. And the exception is not to be enlarged by implication. See Spence v. Chodwick, 10 Adol. and Ellis, N. S. Rep. 517, where the law is reviewed.

2. Loading a ship beyond her capacity is a matter at the charge of the carrier. His contract warrants her ability to perform the voyage in safety, so far as that depends on the ship. Secret defects are at his risk, and not at that of the shipper. He is to determine the quantity of cargo she can safely carry. He alone can be presumed to know her capabilities, defects, and weaknesses. It is his instrument for performing his contract, and as he gains by its perfection, he must suffer by its imperfection.

3. Indeed, it seems scarcely reasonable to pretend, that where the subject is exposed to the sea, as a cause of danger, it can be said to suffer from that, when it was not prepared to meet it: and suffers only from the defective, unskilful, careless, or insufficient means adopted to guard against the danger.

4. It must therefore be judged, that overloading, or improperly loading a ship, takes away the exception of the bill of lading, especially if the damage to cargo arise from it.

Now, overloading and improperly loading have reference to the capabilities of the ship, whether old or new, well built or badly built, staunch or weak, in relation to the cargo which is engaged to be carried, and the place where it is to be placed. All these are matters within the engagement of the carrier, and are to be carried out by him.

5. And the burden lies on him to excuse himself, by showing that the damage arose without his fault and by the excepted peril. The shipper commits his goods to the carrier's care, he is not present during the voyage, he cannot detect secret faults or neglects, and is in no equality with the carrier, as to proving the cause of the loss. The law throws the burden of making out the whole excuse on the carrier.

Third Point. Has the carrier, in this case, shown the jettison within the exception, as thus expounded? Has the ship met the storms and gales to be expected on her voyage, with suitable fitness to meet them, so far as her own carrying qualities and a reasonable loading are involved?

The evidence may be classed into that which relates: 1. To the commencement of the voyage. 2. To the conduct of the ship before jettison. 3. To her conduct afterwards; from all which it will appear that the ship-owner loaded her too heavily. The evidence of the claimant's witnesses alone will be cited.

Mr. Lord then examined the evidence.

Fourth Point. The libel is properly brought in the name of Charles Minturn, the consignee, to whom the delivery was to be made, and by whom the freight was to be paid. The bill of lading was a sufficient contract and title paper to him.

Mr. Justice CURTIS delivered the opinion of the court.

This is an appeal from a decree of the district court of the United States for the northern district of California, sitting in admiralty. The appellee filed his libel in that court, against the ship Hornet, for the non-delivery of two steam-boilers and chimneys, shipped on board that vessel in the port of New York, and consigned to the libellant.

The appellants intervened, as owners of the ship, and, upon the pleadings and proofs, the district court made a decree in favor of the libellant. The claimants appealed.

The first question to be determined on the appeal is, whether the libellant had a right to sue in his own name. The facts bearing on this question are, that on the nineteenth day of July, 1851, Edward Minturn, at New York, made a contract with the agent of the ship Hornet, which was reduced to writing, as follows:--

Memorandum of agreement to ship on board the ship Hornet, by Edward Minturn, Esq., two boilers, two chimneys or steam-chests, smoke-pipes in sheets, and some grate bars, in all about forty tons weight, from this port to San Francisco, California, for the sum of forty-five hundred dollars, with five per cent. primage: the whole to go on deck, except the grate-bars and sheet-iron for smoke-pipe. It is understood that the shipper is to put them on the deck of the vessel at his expense, and the ship is to discharge them as soon as convenient, and they are to be received at Cunningham's wharf, in San Francisco, without other than the ordinary charge per day for discharging. It is further understood that the said boilers are to be ready to go on board the vessel on the ninth day of August, or as soon thereafter as the ship may require them, giving shipper two days' notice thereof.

(Signed) EDWARD MINTURN.

E. B. SUTTON, Agent for ship Hornet.

It appeared that the boilers and chimneys were manufactured in New York, upon an order given by James Cunningham; that they were intended for the steamer Senator, a boat then in California; that James Cunningham and Edward Minturn were part owners of The Senator, and that they paid the makers for these articles. The bill of lading was as follows:--

210. Shipped, in good order and well-conditioned, by Edward Minturn, on board the ship called The Hornet, whereof Lawrence is master, now lying in the port of New York, and bound for San Francisco, California, to say: two boilers, and two steam-chimneys for ditto, eight pieces sheet-iron work, three pieces pipe, one band, two hundred and four grate-bars, sixteen grate-bar bearers, eight boiler bearers, six man-hole plates, eight boiler doors, one bundle (four) bolts, two boxes; the whole to be discharged as soon as convenient, and to be received at Cunningham's wharf, in San Francisco, without other than the usual or ordinary charge for discharging per day; being marked and numbered as in the margin.

-

$4,725

E. B. SUTTON,

84 Wall street.

Dispatch line California packets.

Contents unknown.

Goods to be delivered at the vessel's tackles when ready to be delivered. Not accountable for breakage, leakage, or rust; freight payable before delivery, if required; and are to be delivered, in like order and condition, at the port of San Francisco, (the dangers of the seas, fire, and collision only excepted,) unto Charles Minturn, or to his assigns, he or they paying freight for the said boilers, steam-chimneys, and other iron work, forty-five hundred dollars, with five per cent. primage, and average accustomed.

In witness whereof the master or purser of the said vessel hath affirmed to four bills of lading, all of this tenor and date, one of which being accomplished, the others to stand void.

Dated in New York, the 19th day of August, 1851.

(Signed) WILLIAM W. LAWRENCE.

Upon the proofs, we are of opinion that the libellant had a right to sue the carrier in his own name. He is the consignee named in the bill of lading; and, in the absence of evidence to control the effect of that document, the property is presumed to be in him. In Evans v. Marlett, 1 Lord Raymond, 271, it is laid down that 'if goods, by bill of lading, are consigned to A, A is the owner, and must bring the action against the master of the ship if they are lost; but if the bill be special, to be delivered to A, to the use of B, B ought to bring the action.'

Whether it be strictly correct to affirm that in the case first put, A shall have a right of action against the carrier, though in point of fact he be only an agent for the consignor, has been much controverted. In Griffith v. Ingledew, 6 S. and R. 429, goods were shipped by A for his own account and risk, but deliverable under the bill of lading to B or his assigns. The previous decisions were examined with great care. There was a difference of opinion on the bench, Mr. Justice Gibson dissenting; but the majority of the court held, that by force of the bill of lading the legal title was in the consignee, and he could maintain the action.

Since that decision was made, the question has been much discussed, both in this country and in England. It is not easy to reconcile the decisions. We shall not attempt to do so here; the case does not require it. For, if we take the rule to be that an action against the carrier cannot be brought by a consignee who has no beneficial interest in the goods, it still remains true, that a presumption of such an interest in the consignee arises from a bill of lading which makes the goods deliverable to him or his assigns. This is admitted in the cases in which it has been held that the consignee had not the right of action or was not liable for the freight. Coleman v. Lambert, 5 M. & W. 502; Wright v. Snell, 5 B. and Ald. 350; Chandler v. Spraigne, 5 Met. 306.

In Grove v. Brien et al. 8 How. 439, this court said: 'The effect of a consignment of goods generally is to vest the property in the consignee;' and though it is also there declared that this effect may be controlled by special clauses in the bill of lading, or by evidence aliunde, yet the general effect of a bill of lading to raise a presumption of property in goods in him to whom it makes them deliverable, is conceded.

This is in accordance with the rule given in Abbott on Shipping, pages 415, 416.

Such being the presumption arising from the bill of lading, we do not find it to be controlled by any proof in this case. It does appear that Edward Minturn and James Cunningham were part owners of The Senator, for which boat these boilers and chimneys were intended, and that they contracted with the makers of the articles and paid for them, and that Edward Minturn shipped them in New York. But all this leaves open the question, whether the libellant was not the managing owner and ship's husband of The Senator, residing in California, where that boat was employed, attending to its repairs and supplies, for the joint account of himself and the other owners. Indeed, the testimony of Squire, an agent of the libellant, in the absence of all other evidence, tends to prove that such was the fact; for he speaks of himself as acting for the libellant in reference to the management of The Senator, and says that, her boilers being worn out, an order was sent out to obtain new ones, to replace the old. We understand this order to have been given by the libellant, for the boilers now in question.

Considering the burden of proof to have been on the respondents to displace the prim a facie right of action of the consignee, arising from the bill of lading; that for aught he has shown, and upon the proof, we may conclude that the consignee ordered these articles as managing owner of The Senator; and that if so, he, as consignee and managing owner, might sustain the libel in his own name; this objection to the decree must be overruled.

The next inquiry is, whether the failure to deliver the boilers and chimneys is justified?

The Hornet sailed from New York, on the 23d of August, 1851, having these articles on deck. On the 5th of September the chimneys, and on the 12th of September the boilers, were thrown overboard.

Two questions arise:--

1. Was the jettison necessarily made for the common safety? and, if so,

2. Was the necessity attributable to any, and what, fault on the part of the master or the vessel?

The material facts upon which the first of these questions depends, are, that The Hornet was a clipper-ship of about sixteen hundred tons burden, built at New York, in the years 1850 and 1851, of the best materials in use for first-class ships at that port. She had a cargo under deck, and the weight of these boilers and chimneys on deck was somewhat over thirty-one tons. The height of each of the boilers, above the deck at the forward end, when stowed, was about twelve feet. The steamchimneys were between five and six feet in diameter, and besides these there was a piece of steam-pipe weighing 667 pounds. The ship sailed on the 23d of August, and on entering the gulf stream encountered rather heavy weather and a cross-sea. The performance of the vessel in this sea was found to be bad. On the 26th a gale came on from the south, veering to the northwest, and lasted until the night of the 27th.

Though this gale was not of uncommon severity, it raised a heavy cross-sea. The effect of this sea was to cause the ship to roll down to leeward, so as to take in water over her rail; she rose very slowly and then rolled over to windward, straining and laboring in a manner described by the witnesses as very unusual. She would not mind her helm, but would fall off; she would settle down aft and take in water over her stern, and plunged heavily forward. At sundown on the 27th, the wind lulled and the sea became more smooth. It was found during and immediately after the gale, that the ship was very severely strained, so as to open some wood-ends aft, one half to three quarters of an inch, and her water-way seam half an inch, and that other injuries, of an alarming character, had been received. The master then held a consultation with his officers, and drew up the following protest: -

August 29, 1851, latitude 31°0' N., longitude 61°5' W.

At sea, on board ship Hornet, of New York, William W. Lawrence, master, bound from New York to San Francisco, California.

We, the undersigned, master, officers, and mariners of the ship Hornet, of New York, do, after mature and serious deliberation, enter this solemn protest: That on the 26th day of August, 1851, the ship Hornet being then in or about the longitude of 49° W., latitude 37° N., experienced a gale of wind from south, veering to N. W.; and that during said gale, which lasted until the night of the 27th of August, the weight of the deck load, consisting of two boilers, with furnaces attached, and two steam-chimneys, (the whole supposed to be of the weight of forty tons, or thereabouts,) did cause the ship to labor very hard, rolling gunwale deep, shipping large bodies of water, straining the ship in her upper works and decks, causing the ship to leak badly, and her pumps constantly worked, placing our lives, ship, and cargo, in imminent peril for their safety. We, now, therefore, do most seriously and solemnly assert, that for the future preservation of the ship, and thereby our lives and cargo, the said boilers, furnaces, and chimneys are unsafe on the decks, and for the safety of the whole should be thrown overboard as soon as possible, the weather and sea permitting.

In testimony whereof to the above, we hereby subscribe our respective names.

This protest was signed by all the officers and by such of the crew as could write, and its substantial facts are testified to by the master and officers who were examined in the cause, in such a manner as to satisfy us of their truth.

Upon these facts, we have come to the conclusion that the jettison was necessary for the common safety.

The nature of the case imposes on the master the duty, and clothes him with the power, to judge and determine upon the facts before him, whether a jettison be necessary. He derives this authority from the implied consent of all concerned in the common adventure. The obligation of the owners is to appoint a competent master, having reasonable skill and judgment, and courage; and they are liable, if through his failure to possess or exert these qualities, in any emergency, the interest of the shippers is prejudiced. But they do not contract for his infallibility, nor that he shall do, in an emergency, precisely what, after the event, others may think would have been best.

If he was a competent master; if an emergency actually existed calling for a decision, whether to make a jettison of a part of the cargo; if he appears to have arrived at his decision with due deliberation, by a fair exercise of his skill and discretion, with no unreasonable timidity, and with an honest intent to do his duty, the jettison is lawful. It will be deemed to have been necessary for the common safety, because the person to whom the law has intrusted authority to decide upon and make it, has duly exercised that authority.

Applying these principles to the case before us, we find no reason to doubt that this jettison was thus necessary. It is true, that when it was actually made, the sea was smooth, and the ship in no immediate danger. But it satisfactorily appears, that these boilers and chimneys could not be thrown overboard, without the greatest risk, when there was any considerable sea. To require delay until a storm, would be, in effect, to prohibit the sacrifice. Precaution against dangers, which are certain to occur, is surely proper. That they must experience gales and heavy seas at that season, in that voyage, was so nearly certain, that it was not unreasonable to act on the assumption that they would occur, and prepare the ship to encounter them while in a smooth sea, when alone they could do so.

We find the conduct of the master and crew in making the jettison to have been lawful, and the remaining inquiry is, whether the necessity for it is to be attributed to any fault on the part of the master or owners.

The libel alleges the loss of the goods to have been 'through the mere carelessness, unskilfulness, and misconduct of the said master, his mariners, and servants.'

We were at first inclined to the opinion that this allegation is not broad enough to put in issue what the libellants have at the hearing much relied on, and what we think is the main question in this part of the case; the sufficiency of the ship to carry this cargo. It is, no doubt, the general rule, that the owner warrants his ship to be seaworthy for the voyage with the cargo contracted for. But a breach of this implied contract of the owners does not amount to negligence, or want of skill of the master or mariners.

There would be much difficulty, therefore, in maintaining, as a general proposition, that an allegation of negligence of the master would let the libellant in to prove unseaworthiness of the vessel.

But it must be observed that this libellant relies not on general unseaworthiness, but upon the fact that a vessel, staunch and sufficient to carry a cargo, was overloaded by this burden on the deck; and as the quantity of lading and the consequent trim and seaworthiness of a vessel are matters as to which the master is, generally speaking, bound to exercise his skill, and over which he is intrusted for the benefit of all concerned with a supervision, his failure to do so properly, is negligence, for which the owner may be liable. While, therefore, we have some difficulty in respect to the sufficiency of this allegation, we think it is such as necessarily leads us into the inquiry, whether the loss by jettison was occasioned by negligence of the master in overloading the ship. And as we find it extremely difficult, if not impossible, to distinguish between the obligation of the owners and master, in these particulars, we shall proceed to consider the question whether the case is one of culpable negligence, or is within the exception of perils of the seas contained in the bill of lading.

There can be no doubt that a loss by a jettison, occasioned by a peril of the sea, is a loss by a peril of the sea. In that case the sea-peril is deemed the proximate cause of the loss. But if a jettison of a cargo becomes necessary in consequence of any fault or breach of contract by the master or owners, the jettison is attributable to that fault or breach of contract, and not to sea-peril, though that also may be present and enter into the case. This distinction is familiar in the law of insurance. ''General Mut. Ins. Co. v. Sherwood,'' 14 How. 365, and cases there cited.

In this case, did the necessity for the jettison arise from any fault or breach of contract by the master or owners?

Two grounds are assumed by the libellant. The first is, that considering the great weight of these articles, resting upon a small part of the upper deck, sufficient means were not used to support the weight and stiffen the ship, so as to prevent the deck from being strained.

This was a new ship, built of such materials, and so fastened and braced, as to be uncommonly strong. The owners employed a ship-carpenter, who had worked on the vessel when built, to do what he deemed necessary to support this unusual weight on the deck. He describes what was done. The master superintended these alterations. He and the carpenter deemed them sufficient. They were both going to sea in the vessel, the one as commander, the other as carpenter, and can hardly be supposed to have omitted any thing which they thought necessary for safety. The owners do not appear to have restricted them, in point of expenditure. We cannot avoid the conclusion that every thing was done which these men thought necessary; and possessing, as they must be presumed to have done, competent skill in their respective occupations, they believed this part of the cargo was securely stowed, and fastened and stayed, to go safely on the voyage. In point of fact, however, after being subjected to the action of the sea in a storm, it was found the deck had settled.

The second ground taken by the libellants is, that the ship was so overloaded, by the great weight of these articles on deck, as to be unseaworthy; and as the jettison was made to relieve the vessel from this condition, the owners are responsible for the loss. In part, at least, the same principles of law will be found applicable to both these grounds, and therefore we consider them together.

The principal question, and it is one of much importance, is, what is the extent and operation of the implied contract of the owner, respecting the ability of his ship to carry a particular deck load which he receives on board, under a contract that it shall be carried on deck, dangers of the seas excepted?

In general, the owner warrants the sufficiency of his vessel to carry the cargo put on board by the freighter, provided the vessel be not injured by a peril of the sea. Besides this, he contracts for the use of due care and skill in stowing the cargo and in navigating the vessel.

But, in applying these rules to cargo on deck, some peculiar considerations must be borne in mind.

This bill of lading declares that the property is to go on deck. It excepts perils of the seas. The exception must be construed with reference to the particular adventure, which the contract of affreightment shows was contemplated by the parties. Under this bill of lading the question is, not what in other circumstances could be deemed a peril of the sea, but what is to be deemed such when operating on this vessel, with this deck load. If a very burdensome cargo, like iron, is taken on board, and heavy weather met with, and a jettison made, it would not be a ground of claim against the owner, that the weather encountered would not have been sufficient to justify a jettison if the cargo had been cotton.

And when this freighter consented to place on the deck of this ship his boilers and chimneys, weighing upwards of thirty tons, not distributed about the deck, but lying in a small space, must he not be taken to have known that their necessary effect might be to embarrass the sailing of the ship in a gale of wind, and cause her to labor in a heavy sea. The grounds upon which the rights and obligations, as to contribution, of owners of cargo on deck, in case of jettison, have long rested, have an intimate connection with this question. Valin, lib. 3, tit. 8, art. 12, giving the reason of the rule, that goods jettisoned from the deck are not paid for in general average, but contribute if not thrown over, says: 'The reason why articles on deck, thrown overboard or damaged, are not contributed for, is, that as they cannot but embarrass the working of the ship, the presumption is, that they have been jettisoned before a full necessity for a jettison of cargo arose, and only because they hindered and confused the manoeuvring of the vessel.'

This has been still more clearly expressed by Locr e, in his Commentary on the Code du Commerce Maritime, lib. 2, tit. 12, art. 421. He says: 'Perhaps the common safety would not have made a jettison necessary if the lading had not been in contravention of rule, if it had not brought the dangers on the vessel, or contributed to enhance them.' Similar views have been taken by the most approved writers on the law of insurance, in this country and in England, and they have been applied in many cases. Abbott on Shipping, 481, 490, and notes; 3 Kent's Comm. 240; 2 Phillips on Ins. 71; 2 Arnold on Ins. 890. It was remarked by Lord Denman, in Milward v. Hibbert, 3 Ad. & El. N. S. 120, that the reason assigned by Valin, that goods on deck embarrassed the navigation of the ship, is not sufficient to form the basis of a universal rule, excluding goods on deck from the benefit of contribution; because it may be that, in many cases, goods can best and most safely be stowed on deck; and that they may, in some cases, be so stowed as not to be in the way of the crew in their operations. This may be true; but the point here is, not whether there may be cases in which the deck load does not embarrass the navigation or increase the danger, but whether, in case it does so, the shipper who has consented to his goods being placed on deck, under a special contract, and not pursuant to any general custom, which might be evidence of the safety of the practice, must not be taken to have known that such might be its effects.

It was strongly urged, by the libellant's counsel, that the shipper could not be supposed to have, and should not suffer for not possessing, a knowledge of the capacity or sufficiency of the ship; that the carrier was bound to know that the instrument, by which he agreed to perform a particular service, was sufficient for that service; and that, as these carriers contracted to convey this deck load to San Francisco, they were obliged to ascertain whether placing it on deck would overload their vessel. This appears to have been the ground on which the court below rested its decree.

This reasoning would be quite unanswerable, if applied to a shipment of cargo under deck, or to its being laden on deck without the consent of the merchant, or to a contract in which perils of the sea were not excepted. But the maritime codes and writers have recognized the distinction between cargo placed on deck, with the consent of the shipper, and cargo under deck.

There is not one of them which gives a recourse against the master, the vessel, or the owners, if the property lost had been placed on deck with the consent of its owner; and they afford very high evidence of the general and appropriate usages, in this particular, of merchants and ship-owners. Consolato, par Pardessus, c. 186; Ord. de Mer, Valin, lib. 2, tit. 1, art. 12; Code du Com. Mar. par Locre, art. 229, lib. 2, tit. 4, art. 229; Emerigon, ch. 12, sec. 42; Boulay Paty, tom. 4, 566, 568.

So the courts of this country and England, and the writers on this subject, have treated the owner of goods on deck, with his consent, as not having a claim on the master or owners of the ship, in case of jettison. The received law, on the point, is expressed by Chancellor Kent, with his usual precision, in 3 Com. 240: 'Nor is the carrier in that case (jettison of deck load) responsible to the owner, unless the goods were stowed on deck without the consent of the owner, or a general custom binding him, and then he would be chargeable with the loss.'

The cases of Smith et al. v. Wright, 1 Caines's R. 43; Dodge v. Bartol, 5 Green. 286; Hampton v. The Brig Thaddeus, 4 Martin's Lou. R. 582; Story on Bailments, 339, sec. 531; and Gould v. Oliver, 4 Bing. N. C. 142, support this statement. In the last-mentioned case, Tindal, C. J., says: 'Now, where the loading on deck has taken place with the consent of the merchant, it is obvious that no remedy against the ship-owner or master, for a wrongful loading of the goods on deck, can exist. The foreign authorities are, indeed, express on that point; and the general rule of the English law, that no one can maintain an action for a wrong, where he has consented or contributed to the act which occasions his loss, leads to the same conclusion.'

It must be admitted, that no one of the authorities referred to go so far as to maintain that the ship-owner contracts no obligation whatever to the merchant, respecting the sufficiency of the vessel to carry the deck load received on board. They should not be understood as supporting such a position. The extent to which we understand them to go, and the law which we intend to lay down, is this: that if the vessel is seaworthy to carry a cargo under deck, and there was no general custom to carry such goods on deck in such a voyage, and the loss is to be attributed solely to the fact that the goods were on deck, and their owner had consented to their being there, he has no recourse against the master, owners, or vessel, for a jettison rendered necessary for the common safety, by a storm, though that storm, in all probability, would have produced no injurious effect on the vessel if not thus laden. It is not for him to say that, in the first storm the vessel encountered, though not of unusual severity, she proved to be unable to carry the deck load, and so was not of sufficient capacity to perform the contract into which the carrier entered.

The carrier does not contract that a deck load shall not embarrass the navigation of the vessel in a storm, or that it shall not cause her so to roll and labor in a heavy sea, as to strain and endanger the vessel. In short, he does not warrant the sufficiency of his vessel, if otherwise stanch and seaworthy, to withstand any extraordinary action of the sea when thus laden. If the vessel is in itself stanch and seaworthy, and her inability to resist a storm arises solely from the position of a part of the cargo on the deck, the owner of the cargo, who has consented to this mode of shipment, cannot recover from the ship or its owners, on the ground of negligence, or breach of an implied contract respecting seaworthiness. His right to contribution is not involved in this case.

Applying these principles to the case before us, there is no difficulty in coming to a satisfactory conclusion. This vessel was uncommonly stanch and strong. The amount of dead weight on board was not excessive, for there is no pretence that she was too deep in the water. There was no apparent inability to carry the deck load when she sailed, nor until heavy seas were encountered. Her inability to carry these boilers and chimneys arose solely from their particular position on deck.

The libellant, through the shipper in New York, consented to their being placed in this position. He took the risk of their rendering the ship unmanageable in a storm; and he, and not the ship-owners, must bear the loss occasioned by their being placed on the deck, so far as the liability for the loss rests upon any ground of negligence in the place of stowage, or breach of warranty respecting the seaworthiness of the vessel. As to the argument, that there was negligence in not properly stowing and supporting this burden on deck, we think it is not made out in proof. The master is bound to use due diligence and skill in stowing and staying the cargo; but there is no absolute warranty that what is done shall prove sufficient. We are of opinion that due diligence and skill were used. Besides, we do not find the necessity for the jettison attributable to any defects in these particulars. It may be, that additional supports of the lower deck would have assisted the vessel in bearing the weight, but we see no reason to believe they would have enabled it to carry this unusual burden through a storm; and, therefore, if we found negligence in this particular, we could not declare that the loss was to be attributed to it.

The decree of the district court is to be reversed, and the cause remanded, with directions to dismiss the libel with costs.

This cause came on to be heard on the transcript of the record from the district court of the United States for the northern district of California, and was argued by counsel. On consideration whereof, it is now here ordered, adjudged, and decreed by this court, that the decree of the said district court in this cause 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 that court to dismiss the libel with costs.


text: Talk:Lawrence v. Minturn/Opinion of the Court


text: Stewart v. United States (58 U.S. 116)

title: Stewart v. United States (58 U.S. 116)


text: Talk:Stewart v. United States (58 U.S. 116)


text:
Stewart v. United States (58 U.S. 116)/Opinion of the Court

THIS case was brought up, by writ of error, from the circuit court of the United States for the District of Columbia, holden in and for the county of Washington.

There was an agreed statement of facts in the record, which is transcribed in the opinion of the court, and therefore it is unnecessary to recite it here.

Stewart was sued in 1835, and voluntarily appeared. From that time to 1850, the cause was regularly continued upon the docket. Under the instructions of the court, the jury found a verdict for the plaintiffs, for $638.81, with interest from the 13th of January, 1833.

Stewart brought the case up to this court by writ of error.

It was argued by Mr. Walter S.C.ox, for the plaintiff in error, and by Mr. Cushing, (attorney-general,) for the United States.

Mr. Cox, for the plaintiff in error, made the following points:--

1. That the act of congress of Amy 7, 1822, does not apply to cases in which a collector holds at the same time the office of collector and any other distinct and independent office recognized by law, by distinct and independent appointment, but only to cases in which duties appertaining to other offices are, in occasional cases, annexed by law to the office of collector, or, by usage of the treasury department, he is called on to perform duties not strictly appertaining to his office.

If the literal meaning of a statute would extend to cases which the court are satisfied the legislature never contemplated, or which would lead to absurd consequences, the operation of the statute must be restrained to narrower limits than the words import. 2 Inst. 386; Bacon's Abridg't Stat. I. 5; 1 Blackst. 88; Brewer's Lessee v. Blougher, 14 Pet. 78; United States v. Fisher, 2 Cr. 358; 1 Cond. R. 421.

In this case, the literal import of the language used in section 18th of the act of May, 1822, as understood by the accounting officers of the treasury, would embrace cases never contemplated by congress, and to which the application of the law would be absurd. It would require that every officer in the service of the United States should be satisfied with $400 per annum, as the pay of his office, if he at the same time hold the office of collector, no matter how insignificant the emoluments of the latter, or how responsible the duties of the former office.

On the other hand, there is a subject-matter to which the language applies without any absurd or inconvenient consequences. The act entitled 'An act to regulate the collection of duties,' &c., of July 31, 1789, ch. 23, §§ 7, 8, (1 Stat. at Large, 29,) devolves the duties of one or more of the three offices of collector, naval officer, and surveyor, upon one of them, in certain contingencies, and temporarily.

Again, by the practice of the treasury department, collectors and naval officers have acted as agents to disburse money for light-houses, receiving commissions for the same, and have issued certificates to accompany distilled spirits, wines, and teas, receiving fees for the same. In these cases, they do not act in any distinct office created by law, but perform mere agency service, these duties being annexed to their offices by the department. The law applies to such cases, and was so construed by the department. See Dr. Mayo's work on the Treasury Department, 69, 75.

The construction given by the United States to this law would have the effect of making a few words at the end of the law, exclusively intended for revenue officers, operate as a repeal, by implication, of all the laws, fixing the compensation of officers of the United States, in cases where any other office is united in the same person with the office of collector, &c. Repeals by implication, whether general or partial, are not favored by the law; and there must be positive repugnancy between the old and the new law to make a repeal by implication. Dwarris on Statutes, 674; Wood v. United States, 16 Pet. 342.

In this case, the construction maintained by the plaintiff in error would reconcile the act of May 7, 1822, with the others, in all cases.

If fairly interpreted, the letter of the law in this case seems more appropriate for the class of cases to which we would limit it, than to convey the extended meaning claimed for it on the part of the United States. Had it been meant to apply to distinct offices, the language would have been as in the 14th section of the act: 'No person who shall be a collector, &c., and shall at the same time hold any other office, &c., shall ever receive more than $400 annually, &c., in his said office.' Instead of which, the language is, 'no collector,' &c., that is, qua collector, &c., 'shall ever receive, &c., for any services which he,' that is, as collector, may perform, &c. If a collector has at the same time another distinct office, as that of inspector, it is not the collector who performs services in the latter office, but the inspector; it is not the collector who receives pay for these services, but the inspector. The prohibition, therefore, as to a collector's receipts, would seem not to apply, except to cases where the collector, as such, receives fees for incidental services performed by him as collector, but which do not strictly belong to his office.

This view is confirmed by the fact that, wherever the laws are clearly meant to apply to the case of union of distinct offices in the same person, the language used is entirely different.

There are two sets of phrases in the laws. The 15th section of the act of May 7, 1822, which limits the amount to be received by a deputy collector 'for any services he may perform for the United States in any office or capacity,' is supposed to indicate the same policy as the 18th section, and to apply only to services rendered by him as deputy collector, and not to cases where he is invested at the same time with another distinct office.

On the other hand, the 14th section employs a different language, to apply to distinct offices. So the civil and diplomatic appropriation act, of June 27, 1834, § 2, in speaking of other officers than collectors, naval officers, and surveyors, says, 'nor shall the union of any two or more of these offices in the same person entitle him to more than,' &c.; which is different from saying, 'nor shall any such officer receive more than, &c., for any services he may render to the United States, in any other office or capacity.' The language of the act of 1834 is followed in the other appropriation acts.

The difference between the two forms of language is shown, and the above views generally are sustained, in the case of United States v. Morse, 3 Story's R. 87. It may be added, that the meaning of this act is at least doubtful; and if so, it should be construed favorably to the plaintiff in error. Ib.

2. If our construction of the act of May 7, 1822, be correct, the plaintiff in error was entitled to the compensation claimed by him in his accounts for the 4th quarter of the year 1832.

By the act of March 2, 1799, ch. 22, § 21, (1 Stat. at Large, 627,) collectors are to appoint inspectors, with the approbation of the principal officer of the treasury department.

By the act of March 3, 1815, ch. 94, § 3, (3 Stat. at Large, 231,) continued in force by acts of April 27, 1816, and March 3, 1817, inspectors are declared to be officers of the customs, and required to take an oath of office.

The act to regulate the collection of duties, &c., of July 31, 1789, (1 Laws U.S. 45,) limits the compensation of inspectors to one dollar and twenty-five cents for every day of actual employment.

The act of March 2, 1799, § 2, (1 Stat. at Large, 707,) increases the maximum to two dollars per day; and the act of April 26, 1816, (3 Stat. at Large, 306,) adds fifty per centum to this maximum, making it three dollars per day.

Under these acts, the secretary of the treasury, in 1820, established the compensation of the plaintiff in error at three dollars per day. He continued in the office until January 15, 1833. Under the fixation of his salary by the proper officer, after the service was rendered, he acquired a vested right to the compensation established by the secretary, unless the act of May 7, 1822, § 18, reduced his compensation; and that, too, even if the secretary erred, either in the appointment to office or the fixation of salary. United States v. McCall, Gilpin, 563; United States v. McDaniel, 7 Pet. 15.

3. No act of the secretary of the treasury, or of the plaintiff in error himself, affected his right to the compensation claimed.

The allowance made by the secretary of the treasury, at the end of the year 1824, was a decision upon the construction of the law. It could not be otherwise; for, if the plaintiff in error had acquired a vested right to the three dollars per day, it could not be taken away from him by the secretary, and the secretary is not to be presumed to have intended to exceed his powers. The act of the secretary related entirely to the past, and must therefore be construed to be a mere decision, which, if erroneous, cannot conclude the judgment of a court. United States v. Dickson, 15 Pet. 141.

Nor does the omission of the plaintiff in error to charge more than $400 per annum, from the year 1824, preclude him from afterwards claiming the difference between that and the maximum compensation. If the law entitled him to it, nothing but a new contract or a release could deprive him of it, of which there is no evidence, and for which there would be no consideration. His omission to charge, construed as an admission of law, would not affect him. Construed as an admission of fact, it could not be treated as an estoppel or admission in law which would authorize a court, from the mere fact of omission to charge, to draw the legal conclusion that he is not entitled to charge now; but would, at most, be mere evidence for a jury, explainable on other grounds than intention to admit any thing, such as constraint, or misapprehension of fact, &c. In point of fact, the whole conduct of the plaintiff in error would seem easily explainable. Situated at a point remote from Washington, he finds his allowance of three dollars per day, as inspector, struck out of his accounts, without, as far as appears, any explanation. Supposing that the secretary, in the exercise of his legal discretion, has revoked his last fixation of the pay of the office of inspector, he falls back upon the original allowance of $40 per month, and charges that in his next accounts. This also is struck out without explanation. He is then left in the dark, and charges nothing for his services as inspector, for four quarters, but evidently meaning to claim what was due him in that capacity at some more convenient season. If this is to operate against him at all, it would bind him to render the services for nothing. At the end of the year 1824, he finds in the corrected account sent him from the department, a credit of $1,000, for two years and a half of service, at the rate of $400 per annum, without further explanation. He may have supposed from this that, as far back as May, 1822, the secretary had established a new rate of compensation. Though the law of May 7, 1822, was sent to him, he may not have observed the provisions supposed to affect him, or have understood it as the accounting officers did; or, if he did so understand it, he may have intended to reserve all questions until the final settlement of his accounts, knowing that a persistence in making charges already disallowed would exhibit a balance against him in his accounts, and subject him to dismissal from office.

At all events, the questions what the plaintiff in error meant, and what the secretary of the treasury meant to do, are questions for a jury. The refusal of his prayer, by the court below, precluded him from asking further instructions, and took his case from the jury. If, however, his construction of the law of May 7, 1822, be correct, he is entitled, if any questions of fact remain open, to have the case remanded to the court below for a new trial.

4. If the construction of the plaintiff in error, of the act of May 7, 1822, be correct, then, even were he concluded by any fact in the case from claiming the whole amount demanded by him, he would, at least, be entitled to the compensation claimed by him to the end of the year 1824, and the decision of the court below must be reversed, for this would entitle him to a credit of $1,737 50/100, which exceeds the balance claimed by the United States, and the judgment would have to be for the defendant.

Mr. Cushing, for the United States.

The statement of facts in the bill of exceptions by Stewart, is, that said Stewart was commissioned by the President, in March, 1818, collector for the district of Michilimackinac, and inspector of the revenue for the port thereof; which office he held, by successive commissions, until 15th January, 1833.

On 1st April, 1819, said Stewart was appointed by the secretary of the treasury, inspector of the customs for that port, which latter office he also continued to hold under this appointment, until the 15th January, 1833, and was allowed the per diem compensation, as inspector of the customs, up to 1st July, 1822, at the maximum of three dollars per day.

This 'is the only case found of record of a collector holding, at the same time, the two offices of collector and of inspector of the customs.'

The act of 7th May, 1822, (3 Stat. at Large, by L. and B., 696, ch. 107, § 18,) which took effect 1st July, 1822, enacts: 'No collector, surveyor, or naval officer, shall ever receive more than $400 annually, exclusive of his compensation as collector, surveyor, or naval officer, and the fines and forfeitures allowed by law for any services he may perform for the United States in any other office or capacity.'

The said Stewart has been allowed, in the adjustment of his accounts, the said sum of $400 annually, since the 30th June, 1822, over and above his compensation as collector, and the fines and forfeitures allowed by law. But, notwithstanding the said act of 1822, Mr. Stewart claimed to be allowed the further compensation, at the rate of three dollars per day from the 1st July, 1822, during his continuance in office, until the 14th January, 1833, which the accounting officers of the treasury have uniformly rejected, as often as presented, since the said 1st July, 1822.

This rejected claim of three dollars per day as inspector of the customs, while he was also collector of the district, is the subject of the bill of exceptions, (pp. 8, 9,) and of this writ of error, by Mr. Stewart.

That the offices of collector of a district and of inspector of the customs are distinct and separate, is admitted; but that does not make an exception from the inhibition of tha act of 1822, 'that no collector * *  * shall ever receive more than $400 annually, exclusive, &c., *  *  * for any services he may perform for the United States in any other office or capacity.'

The 21st section of the act of the 2d March, 1799, to regulate the collection of duties on imports and tonnage, (1 Stat. at Large, by L. and B., 642, chap. 22,) shows that the several offices of collector, naval officer, surveyor, and inspector, are distinct. Their several and respective duties are defined; and the same section requires, 'at the ports to which a collector only is assigned, such collector shall solely execute all the duties in which the co operation of the naval officer is requisite as aforesaid; and shall also, as far as may be, perform all the duties prescribed to the surveyors at ports where such officers are established.'

The act of 1822 will not permit the collector, who executes solely the additional duties of naval officer and surveyor, to receive more than $400 per year for the services which he so performs in the capacity of naval officer and surveyor, exclusive of his compensation as collector and the fines and forfeitures, although the several offices are distinct.

There is no reason why the collector, who performs also the business of inspector of the customs at the port, should receive the compensation of three dollars per day as inspector, seeing that it is the collector who employs the inspector; that is, the same officer acting in one capacity employs himself in another; for, by the 21st section of the act of 1799, before cited, it is enacted that the collector shall, with the approbation of the principal officer of the treasury department, employ proper persons as weighers, gaugers, measurers, and inspectors, at the several ports in his district.

It is true, the appointment, as a constitutional act, lies with the secretary of the treasury, the language of the statute being quite inexact, and running as if the secretary merely possessed a power of approving or disapproving. In fact, he, and he alone, appoints. Murbury v. Madison, 1 Cranch, 137, 155; United States v. Batchelder, 2 Gall. 15; United States v. Wood, 2 Gall. 361; Mr. Legare's Opinion, Opinions Att-Gen. 1577, 1579.

But the inconvenience remains, of having the collector, as collector, employ himself as inspector. The collector himself is to pay to the inspector the sum allowed by law, 'for every day he shall be actually employed in aid of the customs, a sum not exceeding two dollars; and for every other person that the collector may find it necessary and expedient to employ, as occasional inspector, or in any other way in aid of the revenue, a like sum while actually so employed, not exceeding two dollars for every day so employed; to be paid by the collector, out of the revenue, and charged to the United States.' Act to establish the compensations of officers employed in the collection of imports and tonnage, 1 Stat. at Large, by L. and B., 707, ch. 23, § 2.

The compensation to inspectors was increased by a subsequent act, so that the maximum of allowance is three dollars per day.

By the act to regulate the collection of duties on imports and tonnage, approved March 2, 1799, (1 Stat. at Large, by L. and B., 642, ch. 22, § 21,) 'The surveyor shall superintent and direct all inspectors, weighers, measurers, and gaugers within his port; and shall, once every week, report to the collector the name or names of such inspectors, weighers, gaugers, or measurers, as may be absent from, or neglect to do, their duty. * *  * And at the ports to which a collector only is assigned, such collector shall solely execute all the duties in which the co operation of the naval officer is required, as aforesaid, and shall also, as far as may be, perform all the duties prescribed to the surveyors, at the ports where such officers are established.'

The mode of appointing the inspector, the mode of checking his absence or neglect, and the mode of payment, render this office improper to be held by the same person who is, at the same time, collector of the port. The two offices are incompatible; and not to be held by one and the same person, at one and the same time.

This may account for the facts, that 'the defendant's (now plaintiff in error) is the only case found on record, of a collector holding, at the same time, the office of inspector of the customs;' and that he was so appointed but once, on the 15th April, 1819, but was never afterwards reappointed as inspector of customs, although his appointment and commission as collector were renewed every four years, from the 12th March, 1818, until January, 1833.

The act of 1799 (1 Stat. at Large, 638, § 17) enacted that the district of Michilimackinac should consist of a port of entry (and, of course, of delivery also) for the district, and of three other ports of delivery only; a collector to be appointed to reside at the port of entry, and surveyors to reside at the ports of delivery. So that the collector of the district had to perform the duties also assigned by law to a naval officer and surveyor, at ports where such officers were established.

The appointment of Mr. Stewart to be inspector of the customs, while he was collector of the district, was an unauthorized act, a mistake.

If the collector could lawfully nominate himself to be inspector also, and the head of the department could lawfully approve and confirm, then the collector of the port could be, also, inspector, weigher, gauger, measurer, and marker, and, according to the instruction moved, (pp. 8, 9,) might receive his compensation as collector, three dollars per day as inspector, and, also, the fees of weigher, gauger, measurer, and marker.

But the act of 1822 prohibits a collector from receiving more than $400 annually, exclusive of his compensation as collector, and the fines and forfeitures allowed by law, 'for any services he may perform for the United States in any other office or capacity.'

The adjustment by the accounting officers of the treasury, in refusing to allow the collector more than $400 annually, for any extra services, and in refusing to allow him three dollars per day as an inspector, or at the rate of forty dollars per month as inspector, was correct; and the instruction moved on the part of the defendant, on the trial in the circuit court, was very properly refused by the court; wherefore, it is alleged, on the part of the United States, that there is no error apparent in the record, to the prejudice of plaintiff in error, and the attorney-general prays that the judgment be affirmed, with damages and costs.

Mr. Justice DANIEL delivered the opinion of the court.

This case comes before us upon a writ of error to a judgment of the circuit court of the United States for Washington county, in the District of Columbia, in favor of the defendants in error, against the plaintiff, as collector of the revenue for the district of Michilimackinac. The jury, upon the trial in the circuit court, rendered a verdict for the defendants in error, for the sum of $638.81, with interest thereon from the 13th day of January, 1833; and for this amount the court, at its October term, 1852, gave judgment.

The questions of law passed upon and reserved by a bill of exceptions in the court below, and which this court are now called on to review, arise upon the following agreed statement of facts, namely:--

That on or about the 12th March, 1818, the defendant was appointed by the President of the United States, collector for the district of Michilimackinac, and inspector of the revenue for the port thereof; which offices he continued to hold, by successive reappointments, and to receive the emoluments of, till the 15th day of January, 1833.

'That on or about the 1st April, 1819, the defendant was appointed, by the secretary of the treasury, inspector of the customs for the port of Michilimackinac; which office he continued to hold, under his original appointment, until January 15, 1833. The defendant's is the only case found on record of a collector holding at the same time the office of inspector of the customs. His allowance, in this capacity, was fixed by the secretary at forty dollars a month, and so continued until the second quarter of the year 1820, when it was increased by the secretary to three dollars per day, the maximum allowance permitted by law to a regular inspector of the customs. The defendant continued to be paid, as inspector of the customs, at this rate, till the 1st July, 1822, when the act of congress of the 7th May, 1822, went into effect, entitled, 'An act further to establish the compensation of officers of the customs, and to alter certain collection districts, and for other purposes.' 3 Stat. at Large, 693. The 18th section of this act is as follows: 'No collector, surveyor, or naval officer shall ever receive more than $400 annually, exclusive of his compensation as collector, surveyor, or naval officer, and the fines and forfeitures allowed by law, for any services he may perform for the United States, in any other office or capacity."

'A copy of the foregoing law was duly transmitted by the treasury department to the defendant. In his accounts for the 3d and 4th quarters of the year 1822, the defendant charged compensation at the rate of $3 a day, as inspector of customs, which charge was disallowed at the treasury; and in his accounts for the first three quarters of the year 1823, he charged compensation at the rate of $40 a month, as inspector of the customs, which latter charge was also disallowed at the treasury. The defendant rendered several other accounts, containing no charge as inspector of the customs, till the end of the year 1824. In a treasury settlement, made at that date, the defendant is credited with $1,000, 'the amount of an allowance made by the secretary of the treasury, to the collector, for services as inspector, from 1st July, 1822, to 31st of December, 1824, at $400 per annum.' In his account rendered for the 1st quarter of the year 1825, the defendant charged himself with the balance found due from him on the next preceding settlement, in which he had been allowed but $400 per annum, as inspector of the customs; and in his several successive settlements, from that time to 31st December, 1831, continued to charge only $400 per annum, as inspector of the customs.'

'By the act of 2d March, 1831, 'to regulate the foreign and coasting trade on the northern, northwestern, and northeastern frontiers of the United States, and for other purposes,' 4 Stat. at Large, 487, the compensation of every collector, on the northern and northeastern and northwestern lakes and rivers, 'was fixed at an amount equal to the entire compensation received by such officer during the past year.' The defendant was credited, in 1831, and subsequently, with the compensation allowed to him in 1830, being $835 85/100, which included $400, allowed him as inspector of the customs. In 1832, he charged his compensation under this law; but in the 4th quarter of that year he claimed the difference between $400 and 1,095 a year, from the 30th of June, 1822, to the 31st of December, 1832, being $7,297 50/100, for ten years and six months. This claim was, before the commencement of this suit, presented to the accounting officers of the treasury for their examination, and was disallowed. On the foregoing evidence the counsel for the defendant prayed the court to instruct the jury as follows: That the 18th section of the act of Congress, passed on the 7th of May, 1822, further to establish the compensation of the officers of the customs, &c., was not intended to operate, and ought not to be construed as operating, so as to limit the salary or compensation of any district officer, which may by distinct and independent appointment be vested in the person of one holding at the same time the separate office of collector, surveyor, or naval officer; and that such limitation applies only to cases where the collector, surveyor, or naval officer is called to perform services in any other office or capacity, in virtue of, and as an incident to, his office; not to any case where either of those officers was appointed to and executed the duties of another separate office, whilst collector, surveyor, or naval officer.'

'If, therefore, the defendant was appointed to, and held and exercised, the office of inspector of customs, at the same time as that of collector of Michilimackinac, such office of inspector was not within the purview of the 18th section of the said act.

'Which instruction the court refused to give.' In the above statement of the claim of the plaintiff in error there is an apparent confusion in terms, which it may be proper here to mention, although its elucidation is not deemed essential to the decision of this case. Thus, it is said that the plaintiff in error was, in March, 1818, commissioned by the President, collector for the district of Michilimackinac, and inspector of the revenue for the port thereof, which offices he held by successive commissions until the 15th of January, 1833. In the next place it is stated, that the plaintiff in error was, on the 1st of April, 1819, appointed by the secretary of the treasury inspector of the customs for that port, which latter office he also continued to hold under this appointment until the 15th of January, 1833.

If by these two statements a distinction is designed between the office of inspector of the revenue and that of inspector of the customs, this court can perceive no warrant for any such distinction, but must regard the terms used as properly applicable to those inspectors or agents who, by the 21st section of the revenue law of March 2, 1799, are authorized, together with weighers, gaugers, and measurers, to be employed by the collectors, with the approbation of the officer at the head of the treasury department.

Again, regarding as we do the place of inspector, alleged to have been conferred by each of the appointments spoken of by the plaintiff, to be the same in character and objects as provided in the statutes, there would be a manifest irregularity in an attempt to refer its origin and commencement to different sources of creation, and thus to cover the same duties and obligations, and for the same period of time, under the guise of distinct and separate commissions.

The foundation of the claim preferred by the plaintiff in error, rests on the position that the offices of collector and surveyor are separate and different in their character, and in the powers and duties allotted to each; and that under his separate commission, and in the discharge of his separate and appropriate duties, each officer is entitled to his separate and appropriate compensation.

Let us examine this proposition; nay, let it, as a general proposition, be conceded; the inquiry will still remain, how far the concession will sustain the claim of the plaintiff in the present instance.

It is undeniably true, that the act of Congress of March 2, 1799, Stat. at Large, 642, creates and enumerates separately the different offices of collector, naval officer, surveyor of the port, inspector, weigher, gauger, and measurer, and defines and prescribes the functions and duties of each respectively. And it is clear that in ports or districts in which all these offices are called into actual existence, the functions and duties assigned to any one of them are not appropriated in terms, nor by necessary implication, to any of the others; on the contrary, those duties and functions, as distributed by the law, appear to be different, and in some sense incompatible with their union in the same individual, being in some instances in their nature supervisory, and being designed to insure the fulfilment of a portion of those duties by others.

But whilst this is the case, there cannot be denied to congress the power, under circumstances satisfactory to themselves, to blend in the same person or office functions or duties which, under another aspect of facts, they have thought it proper to divide and distribute. This is clearly a question of legislative discretion, bearing upon views of public necessity or policy; and accordingly we find, that, in view of such policy or necessity, congress have, by the very same act of March 2, 1799, materially modified, and to a certain extent contravened, the previous organization prescribed for the collection of the revenue, adapting such modification to the facts or necessities, as they should really exist.

Notwithstanding, however, the power must be conceded to congress to combine in the same officer duties and powers in their nature seemingly incompatible, that power can be conceded to the legislative authority alone and expressly declared, and cannot be implied upon any sound principle of legal interpretation or of public policy. Congress have, it is true, ordained, in certain conjunctures, the union of the duties of collector, naval officer, and surveyor of the port, but under no circumstances have they transferred to either of the officers just enumerated the duties of inspector of the customs. This last-named agent, it is said by the statute, may, with the approbation of the officer at the head of the treasury department, be employed by the collector. Under this provision of the statute the question arises, whether the collector qua collector can, under any circumstances, apart from express legislative direction, become inspector of the customs, or under the authority to employ such an agent can contract with himself to employ himself as such an agent? We are very sure that such a proceeding on the part of the collector is not authorized by the language of the statute, and we think it not warranted by any sound principle of policy, which on the contrary would inculcate a course tending rather to prevent than to invite to fraud and collusion. The collector, therefore, is not the inspector virtute officii, nor warranted in employing himself as inspector, nor in assuming the functions, nor in claiming the compensation, allowable to the latter officer.

In the case under consideration, the plaintiff in error has, by the accounting officers of the government, been allowed for compensation, as inspector, the sum of $40 per month, until some time in the year 1820; and from the period last mentioned he was, for similar services, allowed the compensation of $3 per diem, until the 1st of July, 1822, from which last period the compensation of the collector was limited by the government, for all extra services, to the sum of $400 per annum, under the 18th section of the act of May 7, 1822, which declares: 'That no collector, surveyor, or naval officer, shall ever receive more than $400 annually, exclusive of his compensation as collector, surveyor, or naval officer, and the fines and forfeitures allowed by law for any services he may perform for the United States in any other office or capacity.'

The several allowances made by the government to the plaintiff in error, as inspector of the customs, and received by him in that character, and acquiesced in by both parties, may be regarded as no longer presenting subjects of controversy; but the facts of such allowances, and the acceptance of them, cannot be permitted to control the construction of a public law, nor to influence a claim now asserted under the provisions of that law; much less can they be regarded as affecting the power of congress to regulate, prospectively, the duties and emoluments of agents created by its authority. When, therefore, the plaintiff in error advances a claim in the character of inspector, he must establish a legal and competent appointment to the office of inspector, and an appropriation to him of the duties and emoluments incident thereto. For these he has appealed to the revenue law of March 2, 1799; but neither in that, nor in any other revenue law, do we perceive, as appertaining to him as collector, the authority and functions of inspector, nor any right to con pensation for the services of the latter officer.

With regard to the allowance of $400 per annum, although accorded to him in settlement as inspector of the customs, it is plain from the language of the statute of May 7, 1822, § 18, that this was intended to provide compensation to the collector, naval officer, and surveyor of the port, for extraordinary services incident to their respective offices, and to them only; and did not embrace the subordinate position of inspector, as to which a different mode and rate of compensation, that is, one graduated by the month or by the day, had been provided. To entitle himself to this latter compensation, the claimant must show himself regularly and exactly in the situation to which the law has allotted it. Upon a consideration of the case, we regard the question properly before us to be this: whether the collector, as such, and in virtue of his office, can claim compensation for services not required by the language of the statute by which his duties are prescribed, nor inherently nor regularly appropriate to his office; services which the law has, upon obvious principles of policy, imposed on another and a different agent, subordinate to the collector, the performance of which services it is made the duty of the collector to supervise and enforce. We are of the opinion that the collector could have no such claim, and therefore decide that the judgment of the circuit court be affirmed.

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 Columbia, holden in and for the county of Washington, 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.


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 these supplemented by a blue card (U), notice of use on mechanical instruments; (F) published map; (G) work of art (painting, drawing, or sculpture), or model or design for a work of art; (H) reproduction of a work of art; (I) drawing or plastic work of a scientific or technical character; (JO photograph published for sale; (J) photograph not reproduced for sale; (K) print or pictorial illustration; (R) renewal of copyright subsisting in any work; (R extension of a renewal copyright subsisting in any work. Thus an applicant for copyright on an American book should send for card (A), on which he may enter his application and also include afBdavit as to American typesetting, printing, and binding; if he wishes the affidavit to be separately made he should obtain also the special blue card (A), or if lithographic or photoengraving is used he should obtain also the special blue card (A). A dramatic applicant should send for card (D or card (D), respectively, for the entry of a dramatic or dramatico-musical composition ; or for (D) if he desires to copyright without reproducing for sale. The applicant for a musical composition, as distinguished from a dramatico-musical work, should send for card (E) or (E) respectively. The art applicant should send for card (G) for an original work of art, or card (H) for a reproduction, or for a photograph card (J) or card (J) respectively.

Similar certificate cards, also of library size, uniformly white, are provided for the several classes of registration, correspondingly lettered and numbered, except in a few cases where one certificate form serves for more than one class or subdivision, with the addition of a general form (Z) to cover anything unprovided for in the other certificate forms. The certificate bears on one side the uniform statement of the deposit of two copies or one copy of the article


text: Talk:Stewart v. United States (58 U.S. 116)/Opinion of the Court