Falleck v. Barney. with the modifications stated, upon the free ingress and egress of vessels to and from the Navy Yard. BAER FALLECK vs. HIRAM BARNEY. After imported goods have been seized by a Collector, as having been invoiced and entered below their value, to defraud the revenue, and have been libelled for forfeiture, and discharged on a trial, the Collector may still impose upon them the additional duty of twenty per cent ad valorem, for undervaluation, provided for by the 8th section of the Act of July 30th, 1846, (9 U. S. Stat. at Large, 43.) If such additional duty is paid, it cannot be recovered back, unless a proper protest against its payment is made at the time of such payment. A deputy or acting Collector has power to appoint a merchant-appraiser, on a re-appraisement, and to administer the oath to him. All objections to the qualifications of the merchant-appraiser must be made at the time of the re-appraisement. If not so made, they will be deemed to have been waived. (Before SHIPMAN, J., Southern District of New York, February 12th, 1862.) THIS was an action against the Collector of the port of New York, to recover back an alleged excess of duties paid under protest by the plaintiff, on a quantity of diamonds imported into the port of New York. After entry of the diamonds was made, they were appraised by one of the general appraisers, and the appraised value, as fixed by him, exceeded, by more than ten per cent., the value declared in the entry. The plaintiff, not being satisfied with this appraisement, gave notice of his dissatisfaction to the Collector, as he had a right by law to do, and the Collector appointed a merchant-appraiser to act, in a re-appraisement of the diamonds, with one of the general appraisers. The re-appraisement resulted in no reduction of the value fixed in the original appraisement. In the meantime, the diamonds were seized by the Collector, as forfeited to the United States, on the alleged ground that they Falleck v. Barney. were originally invoiced and entered below their value, with intent to evade the payment of duties and defraud the revenue. A libel was filed in the District Court to forfeit the property, and, upon a trial before a jury, a verdict was rendered for the claimant, the present plaintiff, and the property was discharged. The Collector then imposed the additional duty of twenty per cent. ad valorem, provided for by the 8th section of the Act of July 30th, 1846, (9 U. S. Stat. at Large, 43.), This additional duty was paid by the plaintiff under protest, in order to get possession of the property, and this action was brought to recover back such additional duty. Martin V. B. Wilcoxson, for the plaintiff. E. Delafield Smith, (District Attorney,) for the defendant. SHIPMAN, J., in charging the jury, said: The first point raised by the plaintiff is, that, when the Collector had instituted proceedings to forfeit the property, and failed, his power was exhausted, and he could not then legally exact the twenty per cent. additional duty. But I do not think this position can be sustained. The exaction of the twenty per cent., when the appraised value exceeds, by ten per cent. or more, the value at which the property was invoiced and entered, is imperative on the Collector. He has no discretion in the matter. The law fixes his duty. The seizure of the property, and the determination of the proceedings in the District Court in favor of its owner, cannot affect the question. But, if this were a valid objection to the exaction of the additional duty, it should have been stated in the protest. It has been repeatedly decided, that no objection can be made, in an action of the present character, to the validity of the duties demanded, which is not distinctly and specifically set forth in the protest. The protest, in this case, does not allude to the matter now set up, as one of the grounds of objection to the payment, and, therefore, it cannot be urged on this trial. The statute which requires the grounds of objection to the Morse v. Davis. payment to be set forth in the protest, applies to this additional twenty per cent., as well as to the ordinary rate of duty. This is well settled. We must look, then, to the protest alone, for the grounds. upon which the plaintiff's case rests. The protest objects to the validity of the appraisement, on the ground that the appointment of the merchant-appraiser was made by a deputy or acting Collector, and that the oath was administered to such appraiser by him. But, it was held in United States v. Barton, (Gilpin's R., 439,) that a deputy Collector was a permanent officer of the customs and could lawfully perform the duties of the Collector. I see no reason to distrust that decision, especially as it seems to have been generally acquiesced in, and the practice under it has become universal. The protest also raises the point that the person who acted as merchant-appraiser was not a discreet or experienced merchant, within the true intent and meaning of the Act of Congress. It is a sufficient answer to this objection, that it comes. too late. The importer who sought the re-appraisement was present, or had notice to be present, at the time and place when and where the goods were to be appraised, and should have made his objections to the qualifications of the appraiser then, if at all. As he did not do so, he must be deemed to have waived them, and cannot now set them up. The defendant is entitled to your verdict. ALBERT W. MORSE vs. GEORGE DAVIS. In an action at law for the infringement of letters patent, by selling to others to be used the patented improvement, a special plea set forth that the alleged selling, if any such was made by the defendant, was made by him solely as the agent of another person, and not for profit or on the account of the defendant, and that the defendant derived no profit or advantage whatever Morse v. Davis. therefrom: Held, on special demurrer to the plea, that it was bad, because it was hypothetical and did not admit the cause of action set forth in the declaration, but sought to avoid, without admitting, the same; and that it was also bad, because it did not state the name of the person for whom the defendant claimed to have acted as agent. Semble, that the facts set up in the plea would constitute a defence. (Before HALL, J., Northern District of New York, May 2d, 1862.) THIS was an action on the case for the infringement of letters patent for an improvement in grass harvesters. The declaration alleged, that the defendant "unlawfully and wrongfully, and without the consent or allowance and against the will of the plaintiff, did sell and vend to others to be used, the said improvement, in violation and infringement of the exclusive right so secured" to the plaintiff, &c. To this declaration the defendant pleaded the general issue and two special pleas. One of these special pleas set forth, "that the alleged selling and vending to others to be used, alleged in said declaration, if any such was made by the said defendant, was made by him solely as the agent of another person, and not for profit or on the account of the said defendant, and that the said defendant derived no profit or advantage whatever from the said alleged selling and vending," &c. To this plea the plaintiff demurred, and assigned as special causes of demurrer 1st. That said plea was hypothetical and did not admit the cause of action set forth in the declaration, but sought to avoid, without admitting, the same; 2d. That said plea did not state or show the name of the person for whom the defendant claimed to have acted as agent, in the selling and vending therein mentioned; 3d. That the facts stated in the plea did not constitute a defence to the cause of action set forth in the declaration. The defendant joined in demurrer. HALL, J. The plea is clearly bad, for the cause first assigned. (Conger v. Johnston, 2 Denio, 96; Commercial Bank v. Sparrow, Id., 97, 105, 106; Arthur v. Brooks, 14 Barbour's S. C. R., 533; Stephen on Pleading, 387, 388.) I am inclined to think that the plea is also bad for the Morse v. Davis. cause secondly assigned. If the defendant is entitled to shield himself from prosecution on the ground that he was acting as the agent of another, the rules of pleading which require certainty, fulness, and precision in the statement of the facts in respect to which the issue is tendered, so as to enable the opposite party to make due preparation for the trial of the issue, would seem to require the statement of the name of the party in whose behalf the defendant acted. The plea gives the plaintiff no information which will enable him to take the proper measures to produce at the trial the proof necessary to rebut a prima facie case of agency which may be made by the defendant. The great objects to be obtained by special pleading-narrowing the controversy to a single and distinct issue, and apprising the opposite party of the precise character of the defence set up, in order that he may properly prepare for the trial of the issue-would be defeated, if this form of pleading should be allowed. The plea alleges the defendant's agency as the ground of the defence set up, and is, therefore, somewhat in the nature of the defence when the defendant justifies his act because he was acting under the rightful authority of another. It has some, though perhaps not a very close, analogy to the case of a defendant who makes cognizance and confesses the taking of goods or cattle, as the bailiff of another person, for rent in arrear. In making cognizance, in such a case, no skilful pleader would fail to state the name of the landlord under whose authority the seizure was made. (Stephen on Pleading, 333; Gould's Pleading, chap. 4, secs. 23, 24, 28.) In an action of trespass de bonis, when the defendant justifies the taking from the plaintiff's possession by the authority of the real owner of the property taken, would any special pleader suppose that a plea setting forth that the defendant took and carried away the property mentioned in the declaration, as the agent, and by the direction and authority, of the true and lawful owner thereof, and who had, at the time, the right to take possession, &c., would be good, even if it were not otherwise objectionable, without setting forth the name of the true and lawful owner? I think not; and |