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Opinion of the Court.

shall then be subject; or if, after the expiration of one year and within three years from the said date of original importation, they shall be so withdrawn upon the like payment, with ten per centum added upon the amount of such duties and charges; or if, at any time within three years from the said date of original importation, they shall be so withdrawn for actual export beyond the limits of the United States, then the above obligation to be void; otherwise, to remain in full force."

On the 4th of August, 1880, the importers withdrew the sugar from warehouse for consumption, and paid to the collector the sum of $10,913.55 as the estimated duties thereon, and on account of the duties to be afterwards ascertained and liquidated by him. The appraisement of both the sugar and molasses was made on the 6th of August, and on the 20th of August the collector ascertained and liquidated the duties on the whole cargo, as imported, fixing them at $12,157.76, and stamped upon the entry “Liquidated, and notified importer August 20, 1880.” What was meant by “liquidated,” as thus used, was, that the entry had been passed regularly through the various divisions of the collector's office, and the duties thereon had been finally ascertained and fixed by the custom officials. “Notified importer” meant that the fact of the liquidation had been stated on a sheet of paper which was hung up in the custom-house for the information of the importer. On the 10th of September, 1880, the importers withdrew the molasses from the warehouse for consumption, and paid to the collector the balance of the duties assessed on the whole cargo, to wit, $1244.21, of which $327.50 was the whole amount of the duty on the molasses, and $916.71 was the balance of the duties assessed on the sugar.

On the 15th of September, 1880, the importers protested in writing against the exaction of the duties on the sugar as excessive and illegal, and on the same day appealed from the decision of the collector to the Secretary of the Treasury. On the 22d of January, 1881, the Secretary affirmed the collector's decision, and on the 19th of April, 1881, the importers brought this suit to recover the duties claimed in their protest.

Opinion of the Court.

The evidence introduced by the plaintiffs showed that the excess of duties paid by them, over and above the legal duties, including interest on such over-payments, amounted to $1759.84. It also showed that where merchandise, all of which was covered by one bond, was withdrawn from a warehouse, for consumption, in separate quantities, at different times, the duties paid on the several withdrawals conformed to the estimated duties on the original entry, except that the last or final withdrawal was not paid or settled until it was compared with the warehouse ledger to see whether the correct amount of duties had been paid on the merchandise previously withdrawn. If either too much or too little had been paid, it was noted on the last withdrawal, and a settlement was then made on the basis of the duties, as liquidated. The withdrawal entry of the molasses made September 10, 1880, bore the endorsement in red ink, “To close, $1244.21 ;” which endorsement meant that that amount of duties, as liquidated, was yet due on the original cargo of merchandise covered by the bond. Evidence was also introduced tending to show that the practice of the custom-house in New York, and the action of the collector in the case of the importation in suit, were in accordance with the following paragraph of Art. 616 of the general regulations under the custom-house and navigation laws of the United States, etc., issued by the Treasury Department, January 1, 1874: “Goods withdrawn for consumption may be taken at average valuation — care being had that on the last withdrawal the entire balance of duties be collected. Should the final withdrawal entry be for export or transportation, and there be any difference between the actual duty and the amount due, to close the sum due on the warehouse entry, the excess, if any, shall be refunded on the last withdrawal for consumption, and the deficiency, if any, collected on amendment to the entry.”

At the close of the testimony the plaintiffs moved the court to direct the jury to find a verdict in their favor for the sum of $1759.84; and the defendant moved for a verdict in his favor, on the ground that the protest of the plaintiffs had not been made within ten days after the ascertainment and liqui

VOL. CXXXVII-35

Opinion of the Court.

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dation of the duties assessed by him as collector, as required by section 2931 of the Revised Statutes. The court denied the defendant's motion, and granted that of the plaintiffs. The jury, thereupon, under the direction of the court, found a verdict for the plaintiffs for the sum above specified; and, judgment having been entered on the verdict, the defendant sued out a writ of error, as before stated.

There is but one question in the case, viz. : Was the protest of the importers made within the time prescribed by section 2931 of the Revised Statutes ? That section reads as follows:

On the entry of .. any merchandise, the decision of the collector of customs at the port of importation and entry, as to the rate and amount of duties to be paid such merchandise, and the dutiable costs and charges thereon, shall be final and conclusive against all persons interested therein, unless

the owner, importer, consignee or agent of the merchandise

shall, within ten days after the ascertainment and liquidation of the duties by the proper officers of the customs, as well in cases of merchandise entered in bond as for consumption, give notice in writing to the collector on each entry, if dissatisfied with his decision, setting forth therein, distinctly and specifically, the grounds of his objection thereto, and shall, within thirty days after the date of such ascertainment and liquidation, appeal therefrom to the Secretary of the Treasury."

Inasmuch as the ascertainment and liquidation of the duties in this case was, in fact, made on the 20th of August, 1880, and the protest of the importers was not filed until September 15 of the same year, (twenty-six days thereafter,) it would seem to have been clearly too late under the statute quoted. The contention of the defendants in error, however, seems to be that the ascertainment and liquidation of the duties referred to in section 2931, from which the ten days begin to run, should have been made, under the law, at the date of the last or final withdrawal of the merchandise covered by the bond ; and that, as the protest was filed only five days after that date, it was in time. The decision of this court in Westray v. United States, 18 Wall. 322, 329, and the rulings of the Treas

Opinion of the Court.

ury Department in force at the time the proceedings in this case took place in the custom-house, are relied on as sustaining their view.

It is undisputed that from 1876 to May 2, 1885, (which period embraced the time when the proceedings in this case took place in the custom-house,) the ruling of the Treasury Department was, that a protest was in time if made within ten days from the last or final withdrawal of the merchandise covered by the bond. That ruling appears to have been based upon some expressions found in the opinion of this court delivered by Mr. Justice Strong in Westray's Case, supra, decided at October term, 1873. But in that case, as appears from an examination of it, the question as to when the ascertainment and liquidation of the duties should take place was not involved. The case had reference, it is true, to section 14 of the act of June 30, 1864, 13 Stat. 214, c. 171, now embodied in section 2931 of the Revised Statutes, and was a suit by the United States on a bond given by the importers on the entry of goods for warehousing conditioned for the payment of the duties thereafter to be ascertained. The merchandise was withdrawn for consumption before any ascertainment or líquidation of the duties had taken place, upon the payment of the estimated duties. The collector afterwards ascertained and liquidated the duties, and upon the refusal of the im- . porters to pay the difference between the duties as liquidated and the duties as estimated at the date of the entry, suit was brought on the bond, in the name of the United States, to recover that difference. At the trial, the importers offered to prove that the duties as liquidated were excessive and illegal, and that they had never received any notice of the liquidation of them by the collector. It was held, however, that the law did not require the collector to notify the importer of the liquidation of the duties, but that the latter was under obligation to take notice of the collector's settlement of the amount of them; that, as no protest had been made, and no appeal had been taken to the Secretary of the Treasury, the decision of the collector had become final; and that evidence to prove that the duties as liquidated were excessive and illegal was

Opinion of the Court.

not admissible. The language of the opinion which the Treasury Department evidently relied upon as authorizing the ruling that the withdrawal of the merchandise from the warehouse for consumption was the liquidation of the entry, referred to in section 2931 of the Revised Statutes, and which is relied upon here to sustain the contention of the defendants in error, is as follows: “The statute, and the Treasury regulaitions established under it, require that the duties must be ascertained whenever an entry is made, whether it be for warehousing or for withdrawal. In practice, it is true, the liquidation at the time of entry for warehousing is little more than an approximate estimate, and it is mainly for the purpose of determining the amount of the bond to be given. It is made, and the bond is given, before the goods are sent to the warehouse, or even to the appraisers' stores, and before they are weighed, gauged or measured. But the importer enters them and gives the bond the amount of which is regulated by the estimated amount of duties. It is due to his inattention, therefore, if he does not know what that estimate is at the time when it is made. Equally true is it that he has ample means of knowledge of the second or correct liquidation — that made at the time of the withdrawal entry. One of the conditions of his bond is that he pay the amount of duties to be ascertained under the laws then existing or thereafter enacted. He is thus informed that there is to be another liquidation, and that the law requires it to be made at the time when be shall make his withdrawal entry, and when the duties are required to be paid.”

But in view of the facts in that case the language referred to can hardly be considered as warranting the view of the defendants in error; for the withdrawal of the merchandise in that case occurred before the final liquidation of the duties thereon, and if the importer be required to protest within ten days from that date, it might follow that his protest would have to be made before the actual liquidation had taken place. That is to say, in order to guard against all contingencies be would be required to protest against a future liquidation which might prove to be satisfactory to him in all particulars. Such

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