Twenty-three cases of silk were imported from Canton in the ship
Rob Roy into the port of Boston, consigned to George
D'Wolf and John Smith. After the arrival of the vessel with the
merchandise on hoard, the collector caused an inspector of the
customs to be placed on board. Soon afterwards and prior to the
entry of the merchandise, and prior to the payment or any security
for the payment of the duties thereon, the merchandise was attached
by the deputy sheriff of the county in due form of law as the
property of G. D'Wolf and J. Smith by virtue of several writs of
attachment issued from the Court of Common Pleas for the County of
Suffolk at the suit of creditors of G. D'Wolf and Smith. These
attachments were so made prior to the inspector's being sent on
board the vessel. At the time of the attachment, the sheriff
offered to give security for the payment of the duties on the
merchandise, which the collector declined accepting. The
merchandise was sent to the custom house stores by the inspector,
and several days after, the custom house storekeeper gave to the
deputy sheriff an agreement signed by him, reciting the receipt of
the merchandise from the inspector and stating "hold the said
merchandise to the order of James Dennie, Deputy Sheriff." The
marshal of the United States afterwards attached, took, and sold
the merchandise under writs and process in favor of the United
States against George D'Wolf, which writs were founded on duty
bonds, due and unpaid, for a larger amount than the value of the
merchandise, given before by D'Wolf and Smith, who before the
importation of the merchandise were indebted to the United States
on various bonds for duties besides those on which the suits were
instituted.
Held that the attachments issued out of the
Court of Common Pleas of the County of Suffolk did not affect the
rights of the United States to hold the merchandise until the
payment of the duties upon them, and that the merchandise was not
liable to any attachment by an officer of the State of
Massachusetts for debts due to other creditors of George D'Wolf and
John Smith.
It has often been decided in this Court that it is not necessary
that it shall appear in terms upon the record, that the question
was presented in the state court whether the case was within the
purview of the twenty-fifth section of the Judicial Act of 1789 to
give jurisdiction to this Court in a case removed from a state
court. It is sufficient if, from the facts stated, such a question
must have arisen and the judgment of the state courts would not
have been what it is if there had not been a misconstruction of
some act of Congress, &c., or a decision against the validity
of the right, title, privilege, or exemption set up under it.
The United States has no general lien on merchandise the
property of the importer for duties due by him upon other
importations. The only effect of the first provision in the
sixty-second section of the Act of 1799, ch. 128, is that the
delinquent debtor is denied at the custom house any further credit
for duties until his unsatisfied bonds are paid. He is compellable
to pay the duties in cash, and upon such payment he is entitled to
the delivery of the goods
Page 28 U. S. 293
imported. The manifest intention of the remaining clause in the
section is to compel the original consignee to enter the goods
imported by him.
No person but the owner or original consignee, or in his absence
or sickness his agent or factor, is entitled to enter the goods at
the custom house or give bond for the duties or to pay the duties.
Sec. 36 and 62. Upon the entry, the original invoices are to be
produced and sworn to, and the whole objects of the act would be
defeated by allowing a mere stranger to make the entry or take the
oath prescribed on the entry.
The United States having a lien on goods imported for the
payment of the duties accruing on them, and which have not been
secured by bond, and being entitled to the custody of them from the
time of their arrival in port until the duties are paid or secured,
any attachment by a state officer is an interference with such lien
and right to custody, and, being repugnant to the laws of the
United States, is void.
The acknowledgment by the custom house storekeeper that he holds
goods upon which duties have not been secured or paid, subject to
an attachment issued out of a state court at the suit of a creditor
of the importer, was a plain departure from his duty, and is not
authorized by the laws of the United States, and cannot be admitted
to vary the rights of the parties.
In the Court of Common Pleas of the County of Suffolk,
Massachusetts, James Dennie, the defendant in error, a deputy
sheriff of that county, under a precept issued by the authority of
the state, attached twenty-three cases of silks imported in the
brig
Rob Roy from Canton for a debt due by the importers
and owners of the goods, George D'Wolf and James Smith. Soon after
the arrival of the vessel, the collector of the port caused an
inspector of the customs to be placed on board. The attachment was
made before the entry of the merchandise and payment made or
security given for the payment of the duties thereon and before an
inspector was put on board the vessel. At the time of the
attachment, the plaintiff offered to give the collector security
for the payment of the duties to the United States, which he
declined to accept. About seventeen days after the attachment, the
merchandise being in the custom house stores, under the following
agreement, to-wit,
"District of Boston and Charleston, port of Boston, August 29,
1826. I certify that there has been received into store from on
board the brig
Rob Roy, whereof _____ is master, from
Canton, the following merchandise, to-wit, twenty three cases
silks, A. O. 1 to 23, lodged by D. Rhodes, Jr. inspector, under
whose care the
Page 28 U. S. 294
vessel was unladen. B. H. Scott, public storekeeper. I hold the
above described twenty-three cases silks subject to the order of
James Dennie, Esq., deputy sheriff. B. H. Scott."
The defendant, being the Marshal of the United States for the
District of Massachusetts, attached and took the same merchandise,
by virtue of several writs in favor of the United States against
D'Wolf duly issued from the district Court of the United States.
These writs were founded upon bonds for duties given by D'Wolf and
Smith, amounting to a sum much larger than the value of the
merchandise, which duties were due and unpaid when the merchandise
arrived.
The deputy sheriff, James Dennie, brought an action of trover
against the marshal for the goods, and the judgment of the supreme
judicial court of the state, to which the case was removed by writ
of error from the inferior court, was in favor of the original
plaintiff, and the defendant prosecuted this writ of error.
The following errors were assigned in the Supreme Judicial Court
of Massachusetts: that according to the true construction of the
several acts of the Congress of the United States imposing duties
on certain goods, wares, and merchandise imported into the United
States from foreign ports, and also of the act of said Congress
made and passed on 2 March, 1799, entitled "an act to regulate the
collection of duties on imposts and tonnage," it is contended,
"1. That upon the arrival of the said merchandise in question at
the port of Boston and Charleston, and prior to the supposed
attachment thereof by the said Dennie, a debt immediately accrued
to the United States for the amount of the duties thereon, and the
collector for said port had therefore a legal lien on the said
merchandise for the debt aforesaid, and consequently they were not
then subject to the said Dennie's attachment aforesaid."
"2. That the offer of the said Dennie, at the time of making his
said attachment, to give to the said collector security for the
payment of the duties on said merchandise did not in point of law
give validity to the said attachment inasmuch as the said collector
was not at that time, it being prior to any entry of the
merchandise at the custom house, authorized
Page 28 U. S. 295
by law to receive security from the said Dennie or any other
person or persons whomsoever for payment of the duties
aforesaid."
"3. That after the said merchandise was placed in the custom
house store, as is found by the special verdict, and from that
period to the time when they are stated to have been attached in
behalf of the United States by the said Harris as marshal of said
district, the legal lien of the United States constantly remained
with them, and that the certificate of B. H. Scott, the
storekeeper, which appears in the said verdict can have had no
effect to discharge or in any degree to impair the force of the
said lien."
"4. That by the provisions contained in the sixty-second section
of the aforesaid Act of March 2, 1799, the goods in question, the
same having been imported by and consigned to George D'Wolf and
John Smith, as by said verdict is found, are in point of law to be
considered as their property so far as to be holden liable for the
payment of all the debts then due from them to the United States
for duties on merchandise heretofore imported by them into the said
port of Boston and Charleston."
It was also in this Court contended that the defendant in error
had no property, either absolute or special, nor possession, nor
the right of possession in the goods which were the object of the
supposed trover and conversion in the declaration mentioned.
Page 28 U. S. 299
MR. JUSTICE STORY delivered the opinion of the Court.
The original action was trover, brought by the defendant in
error against the plaintiff in error for twenty-three cases of silk
which had been attached by Dennie as Deputy Sheriff of the County
of Suffolk and afterwards attached by Harris as Marshal of the
District of Massachusetts. The cause was tried upon the general
issue, and a special verdict found upon which the state court
rendered judgment in favor of the original plaintiff.
The special verdict was as follows.
"The jury finds that
Page 28 U. S. 300
the merchandise described in the declaration was brought in a
vessel of the United States into the port of Boston, in the
collection district of Boston and Charleston in Massachusetts, from
a foreign port prior to the commencement of this action. That the
said merchandise came consigned to George D'Wolf and John Smith, as
was evidenced by the manifest of the cargo of the said vessel at
the time of the importation. That soon after the arrival of the
said vessel with the merchandise on board, as aforesaid, the
collector of the said port caused an inspector of the custom house
to be placed on board thereof in conformity with the requirements
of law in such cases. That soon after the arrival of the said
vessel, and prior to the entry of the said merchandise with the
collector and prior to the payment or any security for the payment
of the duties thereupon, the same were attached in due form of law
as the property of the said George D'Wolf and John Smith by virtue
of several writs of attachment issued from the Court of Common
Pleas for the said County of Suffolk in favor of Andrew Blanchard
and others, the said attachment having been made by the plaintiff
in his capacity of a deputy of the Sheriff of the aforesaid County
of Suffolk prior to the inspector's being put on board as
aforesaid. That at the time of the said attachment, the said
sheriff offered to give to said collector security for the payment
of the duties upon the said merchandise, which the said collector
declined to accept. That about seventeen days subsequently to the
time of the attachment, the said merchandise being in the custom
house stores under the following agreement,
viz.,"
" District of Boston and Charleston, port of Boston, August 29,
1826. I certify that there has been received in store from on board
the brig
Rob Roy, whereof _____ is master, from Canton,
the following merchandise,
viz., twenty-three cases of
silk, A. O. 1 to 23, lodged by D. Rhodes, Jr. inspector, and under
whose care the vessel was unladen. (Signed) B. H. Scott, public
storekeeper. I hold the above twenty-three cases of silks subject
to order of James Dennie, Deputy Sheriff. (Signed) B. H.
Scott."
"The defendant (Harris) being marshal, &c., attached the
said merchandise, and took the same, by virtue of several writs
to
Page 28 U. S. 301
him directed, in favor of the United States, against the said
D'Wolf, which writs were duly issued from the District Court of the
United States for the District of Massachusetts, which writs were
founded on bonds for duties theretofore given by the said D'Wolf
and Smith, and which bonds were then due and unpaid, being for a
large sum of money. That the said D'Wolf and Smith, at the time of
the said importation of the merchandise aforesaid, were jointly and
severally indebted to the United States on various other bonds for
duties besides those on which the writs aforesaid were instituted,
which said first mentioned bonds were also then due and
unsatisfied, and that the bonds for duties above referred to and
upon which the attachment by the said marshal was made amounted to
a much larger sum than the value of the merchandise thus attached.
But whether or not, &c.,"
in the common form of special verdicts.
As this case comes from a state court under the twenty-fifth
section of the Judiciary Act of 1789, ch. 20, it is necessary to
consider whether this Court can entertain any jurisdiction thereof
consistently with the terms of that enactment. That section, among
other things, enacts that a final judgment of the highest state
court may be revised where is drawn in question the validity of a
statute of or an authority exercised under any state on the ground
of their being repugnant to the Constitution, treaties, or laws of
the United States and the decision is in favor of their validity,
or where is drawn in question the construction of any clause of the
Constitution, or of a treaty, or statute of, or commission held
under the United States and the decision is against the title,
right, privilege or exemption specially set up or claimed by either
party under such clause of the said Constitution, treaty, statute
or commission.
The objection is that this Court has not jurisdiction of this
case, because it does not appear upon the record that any question
within the purview of the twenty-fifth section arose in the state
court upon the decision on the special verdict. But it has been
often decided in this Court that it is not necessary that it should
appear in terms upon the record that any such question was made. It
is sufficient if from the
Page 28 U. S. 302
facts stated such a question must have arisen and the judgment
of the state court would not have been what it is if there had not
been a misconstruction of some act of Congress, &c., or a
decision against the validity of the right, title, privilege or
exemption set up under it.
17
U. S. 4 Wheat. 311;
25 U. S. 12 Wheat.
117;
27 U. S. 2 Pet.
245,
27 U. S. 380,
27 U. S.
409.
In the present case it is contended that the United States, by
virtue of the sixty-second section of the Revenue Collection act of
1799, ch. 128, had a lien on the present merchandise for all debts
antecedently due on custom house bonds by D'Wolf and Smith, and
that consequently the attachment of the marshal overreached that of
the private creditors, and that the state court have decided
against such lien. If there be no such lien, still it is contended
that under the provisions of the Revenue Collection act of 1799,
ch. 128, the merchandise was not liable to attachment at the suit
of any private creditors under the circumstances, and that the
state court, in giving judgment for the plaintiff, must have
overruled that defense and misconstrued the act.
The question as to the lien of the United States for duties
antecedently due was certainly presented by the special verdict.
But we are all of opinion, that the decision of the state court
disallowing such a lien was certainly correct.
The sixty-second section of the Act of 1799, ch. 128, after
providing for the manner of paying duties and of giving bonds for
duties and the terms of credit to be allowed therefor, goes on to
provide
"That no person whose bond has been received, either as
principal or surety, for the payment of duties or for whom any bond
has been given by an agent, factor, or other person in pursuance of
the provisions herein contained, and which bond may be due and
unsatisfied, shall be allowed a future credit for duties until such
bond be fully paid or discharged."
The only effect of this provision is that the delinquent debtor
is denied at the custom house any future credit for duties until
his unsatisfied bonds are paid. He is compellable to pay the duties
in cash, and upon such payment he is entitled to the delivery of
the goods imported. There is not the slightest suggestion in the
clause that the United States shall have any lien on such
Page 28 U. S. 303
goods for any duties due on any other goods for which the
importer has given bonds and for which he is a delinquent. It was
at once perceived by Congress that the salutary effect of this
provision denying credit upon duties would be defeated by artifices
and evasions and the substitution of new owners or consignees after
the arrival of the goods in port and before the entry thereof at
the custom house. To repress such contrivances, the next succeeding
clause of the act provides
"That to prevent frauds arising from collusive transfers, it is
hereby declared that all goods, &c., imported into the United
States, shall, for the purposes of this act, be deemed and held to
be the property of the persons to whom the said goods, &c., may
be consigned, and sale, transfer, or assignment prior to the entry
and payment or securing the payment of the duties on the said
goods, &c., and the payment of all bonds then due and
unsatisfied by the said consignee to the contrary
notwithstanding."
The manifest intent of this clause was to compel the original
consignee to enter the goods, and if he was a delinquent to compel
him to pay his prior bonds or to relinquish all credit for the
duties accruing upon the goods so imported and consigned to him. It
does not purport to create any lien upon such goods for any duties
due upon other goods, but merely ascertains who shall be deemed the
owner for the purpose of entering the goods and securing the
duties. The state court therefore did not, so far as this question
is concerned, misconstrue the act of Congress or deny any right of
the United States existing under it.
The other point is one of far more importance, and in our
opinion deserves a serious consideration. If, consistently with the
laws of the United States, goods in the predicament of the present
were not liable to any attachment by a state officer, it is very
clear that the present suit could not be sustained and that
judgment ought to have been given upon the special verdict in favor
of the original defendant. And in our opinion these goods were not
liable to such an attachment. In examining the Revenue Collection
act of 1799, ch. 128, it will be found that numerous provisions
have been solicitously introduced in order to prevent
Page 28 U. S. 304
any unlivery or removal of any goods imported from any foreign
port in any vessel arriving in the United States until after a
permit shall have been obtained from the proper officer of the
customs for that purpose. These provisions not only apply to
vessels which have already arrived in port, but to those which are
within four leagues of the coast of the United States. The sections
of the act from the twenty-seventh to the fifty-eighth are in a
great measure addressed to this subject. From the moment of their
arrival in port, the goods are, in legal contemplation, in the
custody of the United States, and every proceeding which interferes
with or obstructs or controls that custody is a virtual violation
of the provisions of the act. Now an attachment of such goods by a
state officer presupposes a right to take the possession and
custody of those goods and to make such possession and custody
exclusive. If the officer attaches upon mesne process, he has a
right to hold the possession to answer the exigency of that
process. If he attaches upon an execution, he is bound to sell or
may sell the goods within a limited period, and thus virtually
displace the custody of the United States. The act of Congress
recognizes no such authority and admits of no such exercise of
right.
No person but the owner or consignee, or, in his absence or
sickness, his agent or factor in his name, is entitled to enter the
goods at the custom house, or give bond for the duties or pay the
duties. Sec. 36, 62. Upon the entry, the original invoices are to
be produced and sworn to, and the whole objects of the act would be
defeated by allowing a mere stranger to make the entry or take the
oath prescribed on the entry. The sheriff is in no just or legal
sense the owner or consignee, and he must, to have the benefit of
the act, be the original consignee or the agent or factor of the
owner or consignee. He is a mere stranger, acting
in
invitum. He cannot then enter the goods or claim a right to
pay the duties or procure a permit to unlade them, for such permit
is allowed in favor only of the party making the entry, and paying
or giving bond for the duties. Sec. 49, 50. If within the number of
days allowed by law for unlading the cargo the duties are not paid
or secured, the
Page 28 U. S. 305
goods are required to be placed in the government stores under
the custody and possession of the government officers. And at the
expiration of nine months, the goods so stored are to be sold if
the duties thereon have not been previously paid or secured. Sec.
56.
It is plain that these proceedings are at war with the notion
that any state officer can in the interval have any possession or
right to control the disposition of these goods, and the United
States has nowhere recognized or provided for a concurrent
possession or custody by any such officer. In short, the United
States, having a lien on the goods for the payment of the duties
accruing thereon and being entitled to a virtual custody of them
from the time of their arrival in port until the duties are paid or
secured, any attachment by a state officer is an interference with
such lien and right of custody, and being repugnant to the laws of
the United States, is void.
It has been suggested that the certificate of the storekeeper
declaring that he held the silks subject to the order of the
attaching officer might vary the application of this doctrine. But
such an agreement was a plain departure from the duty of the
storekeeper, and was unauthorized by the laws of the United States.
It cannot, then, be admitted to vary the rights of the parties.
See fifty-sixth section of the Act of 1799, ch. 128.
This view of the subject renders it wholly unnecessary to
consider the point, so elaborately argued at the bar, whether by
the laws of Massachusetts an attachment would lie in such a case.
If it would, the present attachment would not be helped thereby,
because it involves an interference with the regulations prescribed
by Congress on the subject of imported goods.
Upon the whole, it is the unanimous opinion of the Court that
the judgment of the state court ought to be
Reversed, and that a mandate issue to that court, with
directions to enter judgment upon the special verdict, in favor of
the original defendant.
Page 28 U. S. 306
This cause came on to be heard on the transcript of the record
from the Supreme Judicial Court of the Commonwealth of
Massachusetts and was argued by counsel, on consideration whereof
it is the opinion of this Court that the goods in the special
verdict mentioned were not by the laws of the United States, under
the circumstances mentioned in the said verdict, liable to be
attached by the said Dennie upon the process in the said verdict
mentioned, but that the said attachment so made by him as aforesaid
was repugnant to the laws of the United States and therefore
utterly void. It is therefore considered and adjudged by this Court
that the judgment of the said Supreme Judicial Court of
Massachusetts rendered upon the said verdict be, and the same is
hereby reversed and that a mandate issue to that court with
directions to enter a judgment upon the said verdict in favor of
the original defendant, Samuel D. Harris, and that such further
proceedings be had in said cause as to law and justice may
appertain.
