1. It is not sufficient to sustain a verdict for the plaintiff
that the testimony on which it was founded was known to the court
by whom the jury was charged to find such a verdict. The evidence
must be submitted to the jury, or the charge is erroneous.
2. The question, whether certain imported goods were similar to
certain other goods described in the revenue law, for the purposes
of customs duties, is a mixed question of law and fact, and cannot,
by the mere charge of the court, be wholly withdrawn from the
jury.
Page 76 U. S. 249
3. The proper mode of proving papers on file in any of the
departments or public offices of the government is by procuring
certified copies from those persons who have them in custody. The
counsel for the government cannot be compelled to produce either
such copies or the originals for the benefit of parties who may be
litigating with the government.
4. Notice, therefore, to the party or counsel representing the
government to produce such papers does not authorize the party
giving the notice to use other copies than those properly certified
as above stated.
Schmeider sued Barney, collector for the port of New York, in
the court below in an action of assumpsit with the common counts
only, to which Barney pleaded the general issue. The plaintiff's
claim was for duties on certain woven goods alleged to have been
unlawfully collected of him by the defendant as collector of the
port of New York and which had been paid under protest. The act
under which the goods were rated for duties provided that on all
delaines, cashmere delaines, muslin delaines, barege delaines,
comprised wholly or in part of worsted, wool, mohair, or goat's
hair, and on all goods of similar description, not exceeding fifty
cents in value per square yard, two cents per square yard shall be
paid. And the point in dispute was whether the goods of plaintiffs,
on which the two cents per yard had been assessed, were goods of a
similar description to those above mentioned within the meaning of
the act. A jury was called and sworn, and directed by the court to
find a verdict for the plaintiffs, which was done, and judgment
rendered for the amount claimed.
A paper was found in the record under the caption of "Case and
Exceptions," signed and sealed by the judge who presided at the
trial. This paper set forth some things which were said to be shown
by the evidence, some things which appeared in evidence, and a
large part of it was the evidence itself. There was also the full
charge of the court, the prayer for instructions on the part of the
defendant, which were refused, and the exceptions of the
defendant.
Page 76 U. S. 250
Among other matters found in the bill of exceptions was this
statement in the charge of the court to the jury:
"The testimony taken on a former trial has, with the consent of
both sides and with the approbation of the court, been put in. It
is very voluminous. It has not been read before this jury, nor was
it necessary that it should be, for it was delivered in the hearing
of the court only a few days since, and is fresh in its
recollection. There is very little discrepancy in the
testimony."
The court then proceeded to tell the jury what this evidence
showed that was material to the issue, and to make a very able
argument on the law of the case, and directed the jury to find for
the plaintiff, or rather said, "the verdict ought to be for
plaintiffs." To this part of the charge the defendant excepted
specially.
In the course of the trial, the plaintiff, having given the
defendant due notice to produce at the trial the original appeals
made by him to the Secretary of the Treasury, was permitted to use
copies proved by witnesses who mailed the originals, because
defendant did not produce the originals. This was also excepted to.
The questions now here were these:
1. Whether it was error in the court below, under the
circumstances described, to tell the jury that their verdict ought
to be for the plaintiff.
2. Whether it was error to allow the plaintiff to use the copies
proved by the witnesses who mailed the originals.
3. Whether, on a right construction of the tariff act already
quoted, the expression, "goods of a similar description" was
confined to one ascertained species of goods or was applicable to
others in addition, this last question, however, not being
necessary to be passed on if either of the others were decided in
the affirmative.
Page 76 U. S. 251
MR. JUSTICE MILLER delivered the opinion of the Court.
The Seventh Amendment of the Constitution declares that in suits
at law, where the value in controversy shall exceed twenty dollars,
the right of trial by jury shall be preserved.
This right may be waived by the party. The Act of March 3, 1865,
[
Footnote 1] provides a mode by
which the parties to a suit may submit the matter proper for a jury
to the court, and the case of
Norris v. Jackson, decided a
few days ago, [
Footnote 2]
gives the mode of proceeding under that statute and explains what
may be received in such cases, and how the matter proper for review
may be brought before this Court.
If, then, the parties in the present case had been willing to
waive a jury and permit the court to find both the law and the
facts, there was no difficulty in doing this and in presenting the
law to this Court for review. For it is never to be forgotten that
in common law cases it is the ruling of the inferior court on the
law alone which this Court is authorized to review. The common law
admitted of no reexamination of the facts found by a jury except by
granting a new trial in the same court in which the verdict was
rendered, and the constitutional amendment just referred to forbids
any other mode of reexamination than that which accords with the
rules of common law.
As the defendant in this case did not waive his right to have
the facts tried by a jury, it was the duty of the court to submit
such facts to the jury that was sworn to try them.
It is needless to say that this was not done. The statement is
clear that the case was decided upon the testimony taken on a
former trial, and not read before this jury, because the court had
heard it in the first case, and did not deem it necessary to be
heard by the jury in this case.
It is possible to have a jury trial in which the plaintiff,
having failed to offer any evidence at all, or any competent
evidence, the jury finds for the defendant for that very reason.
And in such case, it is strictly correct, if the plaintiff does not
take a nonsuit, for the court to instruct the jury to
Page 76 U. S. 252
find for the defendant. But we have never before heard of a case
in which the jury were permitted, much less instructed, to find a
verdict for the plaintiff on evidence of which they knew nothing
except what is detailed to them in the charge of the court. It is
obvious that if such a verdict can be supported here, when the very
act of the court in doing this is excepted to and relied on as
error, the trial by jury may be preserved in name, but will be
destroyed in its essential value and become nothing but the
machinery through which the court exercises the functions of a jury
without its responsibility.
It is insisted with much ingenuity that in this case there was
no disputed fact for the jury to pass upon, and that the only issue
in the case being one of law, it was proper for the court to
dispose of it. If this were so, the instruction of the court might
be sustained, provided the undisputed facts necessary to sustain
the verdict had been submitted to the jury. But let us see if this
assumption is supported by the record. The form of the pleadings
shows nothing and admits nothing. The plaintiff then must make a
case by evidence to the jury. Looking into the case stated and as
though it had been read to the jury, we find that plaintiff's claim
is for duties on certain goods unlawfully collected of him by
defendant as collector of the port of New York. The act under which
the goods were rated for duties provides that on all delaines,
cashmere delaines, muslin delaines, barege delaines, comprised
wholly or in part of worsted, wool, mohair, or goat's hair, and on
all goods of similar description, not exceeding fifty cents in
value per square yard, two cents per square yard shall be paid. And
the point in dispute was whether the goods of plaintiffs, on which
the two cents per yard had been assessed, were goods of a similar
description to those above mentioned, within the meaning of the
act. Now it is clear that this question alone is one of mixed law
and fact, because until we are informed by testimony as to the
nature and character of plaintiff's goods, no construction or view
of the law can be applied to them. The court can only know by
evidence what kind of goods
Page 76 U. S. 253
were assessed by the collector, and this at once dispels the
idea that the case could in any sense present an abstract question
of law. But before the court or the jury could get to these
questions, there were several others, purely matters of fact, to be
decided. The rate at which the goods were actually assessed, the
payment of the duties as thus assessed, the protest at the time of
payment, and the appeal to the Secretary of the Treasury were all
essential to the plaintiff's recovery and necessary to be found to
the satisfaction of the jury. The judge also tells us that "there
is very little discrepancy in the testimony." But where there is
any discrepancy, however, slight, the court must submit the matter
to which it relates to the jury, because it is their province to
weigh and balance the testimony and not the court's. The
proposition is not, therefore, sustained that nothing but a
question of law was to be decided.
There is another error, however, which, although unimportant in
this case, may arise very often in the numerous suits to recover
back taxes paid under protest in the customs and in the internal
revenue departments.
The plaintiffs, having given the defendant due notice to produce
at the trial the original appeals made by them to the Secretary of
the Treasury, were permitted to use copies proved by witnesses who
mailed the originals, because defendant did not produce the
originals. This was excepted to and was error, and it would be
equally error if the United States had been the nominal, as it was
the real, defendant in the suit. The papers showing this appeal,
when filed with the Secretary, became part of the records and
archives of his office, and the law is well settled that in such
case the originals need not be produced in any trial, but that
copies of them, certified by the officer in whose charge they
properly are, may be used with the same effect as the originals. If
the government needs these copies, she produces them when she
proposes to use them. If anyone else wants to use them, the law
provides the means by which such copies can be produced. They are
the best attainable evidence, and must be produced unless some
sufficient reason is shown for not doing
Page 76 U. S. 254
so. The government is not bound to furnish either the originals
or certified copies to suitors with whom it is contending unless
upon demand at the proper office and tender of the lawful fees.
For this and for the other errors mentioned the judgment must
be
Reversed and a venire facias de novo is ordered.
[
Footnote 1]
13 Stat. at Large 501.
[
Footnote 2]
Supra, <|76 U.S. 125|>125.
