Westray v. United States
85 U.S. 322 (1873)

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U.S. Supreme Court

Westray v. United States, 85 U.S. 18 Wall. 322 322 (1873)

Westray v. United States

85 U.S. (18 Wall.) 322

Syllabus

1. Under the "act to increase duties on imports," &c., passed June 30, 1864, the collector is under no obligation to give notice to the importer of his liquidation of duties on merchandise imported. The importer who makes the entries is under obligation himself, if he wishes to appeal from it, to take notice of the collector's settlement of them.

2. The right of the importer to complain or appeal begins with the date of the liquidation whenever that is made.

Page 85 U. S. 323

3. The ordinary warehouse bond, in the form prescribed by the regulations of the Secretary of the Treasury, in which the condition provides in the alternative that the penalty may be avoided by the payment, within one year, of a sum of money fixed, OR by the payment of whatever duties may be ascertained to be due whenever the goods should become subject to duty by withdrawal for consumption, is hardly an ordinary pecuniary bond, but is rather a bond given to secure the payment of whatever duties may be by law chargeable on the merchandise to which it refers. At all events, if the obligor pay but part of the sum of money fixed as above said, and the whole of the sum thus fixed proves, on liquidation of the duties for which the bond was given, to be less than the sum with which the goods are rightly chargeable, he cannot come in after the expiration of the dear, and when, at law, a forfeiture has occurred, and tender payment of the difference (with interest) between the sum named in the bond and the amount which he has actually paid. He can be relieved from the forfeiture only upon doing complete equity, and that, in such a case, is nothing less than payment of all the duties to secure which he gave the bond.

"An act to increase duties on imports," &c., passed June 30, 1864, [Footnote 1] enacts:

"SECTION 14. That on the entry of any merchandise, the decision of the collector of the customs at the port of importation and entry as to the rate and amount of duties to be paid on such merchandise 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 officer 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, whose decision on such appeal shall be final and conclusive. And such merchandise shall be liable to duty accordingly unless suit shall be brought within ninety days after the decision of the Secretary of the Treasury on such appeal, for

Page 85 U. S. 324

any duties which shall have been paid before the date of such decision on such merchandise, or within ninety days after the payment of duties paid after the decision of the secretary."

This act being in force, Westray & Co. imported into New York a cargo of rice, the duty on which article, when in the form commercially known and designated as "uncleaned," is two cents per pound, and when in the form commercially known and designated as "cleaned" is two and a half cents per pound. The rice was entered for warehouse in October, 1864, and the usual warehouse bond given on that day by the importer. The bond was in $25,049.90, and was conditioned that the importer should,

"On or before the expiration of one year, to be computed from the date of importation, . . . pay . . . into the collector of the customs &c., the sum of $12,524.95, OR the amount of duties to be ascertained under the laws now existing or hereafter to be enacted to be due and owing &c., OR shall in the mode prescribed by law, on or before the expiration of three years from date of said importation, withdraw said goods from the bonded store or public warehouse where they may be deposited, . . . and actually export the same beyond the limits of the United States, OR shall within three years . . . transport said merchandise in bond to any port of the Pacific or western coast of the United States."

Westray & Co., within a year after giving the bond, withdrew the rice for consumption, and paid thereon two cents per pound as upon "uncleaned rice;"

Thus paying, as it turned out, the sum of . . . $12,352.15

Or less by . . . . . . . . . . . . . . . . . . 172.80

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Than the sum conditioned named in the bond. . . $12,524.95

The rice was afterwards appraised as "cleaned rice," and on entry the collector liquidated the same as such, and the dutiable rate thereof at two and a half cents per pound. The additional half cent, thus charged, made a difference of $2.111.17 between the sum which had been paid and that with which the rice as cleaned rice was now chargeable.

It did not appear that the collector had at any time given

Page 85 U. S. 325

notice to Westray & Co., the importers, of the liquidation, nor did the importers within ten days after the ascertainment and liquidation give any notice of their dissatisfaction, nor make any appeal to the Secretary of the Treasury.

In this state of things, the United States brought suit on the bond, alleging as breach that though the time of one year mentioned in it had expired, Westray & Co. had not within the said year paid the $12,524.95 OR the amount, when ascertained, of the duties imposed by laws then existing &c. Plea, nil debet.

On the trial ,the defendants offered in evidence samples of the rice, and offered to prove that it was in fact and as commercially designated "uncleaned rice," and therefore liable to pay no more duty than two cents per pound, which the government admitted had been paid within one year from date of importation, and that by the said payment of two cents per pound the bond became void.

The government objected to this evidence on the ground that by the act of Congress above quoted, the decision of the collector was final and conclusive as to the rate and amount of duties, no notice of dissatisfaction with such decision having been given to him within ten days after the liquidation and no appeal therefrom having been made to the Secretary of the Treasury.

The court sustained the objection and held that the defendants could give no evidence respecting the character of the rice or its commercial designation in trade or the rate of duty chargeable thereon. The defendants excepted.

The defendants then requested the court to rule that, there being no evidence that notice of the aforesaid liquidation by the collector was at any time given to them or that they ever had knowledge of such liquidation, the time within which to serve notice of dissatisfaction upon the collector and to appeal from his decision to the Secretary of the Treasury, if required by law, as ruled by the court, did not run till notice of liquidation was given to defendants, or till they had knowledge of the same.

Page 85 U. S. 326

The court refused thus to rule on the ground that the collector was not bound to give any notice of his liquidation to the defendants, nor to bring his decision to the defendants knowledge, and that the time within which to give notice of dissatisfaction as aforesaid and appeal must run from the date of such liquidation, whenever made. To which decision the defendants excepted.

The defendants then requested the court to admit the evidence offered by them as to the commercial designation of the rice on the grounds that the collector had given no notice of liquidation as aforesaid and that therefore they were not debarred by the limitations of the statute from giving such notice of dissatisfaction and appeal, as required by the ruling of the court.

The court refused to admit the evidence on the ground that, having ruled that no notice of liquidation from the collector to the defendants was required, the defendants were barred, and the evidence inadmissible. To which decision the defendants excepted.

The defendants then requested the court to instruct the jury that it was a condition of the bond that the same should be cancelled upon the payment of $12,524.95, within one year from date of importation, and as it was admitted that $12,352.15 had been paid within one year, that the jury could lawfully find no greater amount of damage than the difference between these two amounts and interest on this difference.

The court refused to so instruct the jury. To which decision the defendants excepted.

The court then directed the jury to bring in a verdict for the plaintiffs for $2,111.77, gold, with interest, to which direction of the court the defendants excepted.

Verdict and judgment having gone for the United States, the defendants brought the case here.

Page 85 U. S. 328

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