Reports of Cases Argued and Decided in the Supreme Court of the United States

massage of such law, then it was not liable to strue the article according to the designation the duty on cotton bagging.

of such article, as understood and known in

Whereupon he contended for the two follow-commerce, and not with reference to the ma2 propositions, viz.:

1st. Under laws imposing duties, articles are be charged solely according to their comrcial designation at the time of the passage the law, and that whether the designation be fa class or of individual articles. For this he Wed 1 Story's R., 341 (Bacon v. Bancroft), ,642 (Lee v. Lincoln), 9 Wheat., 434, 438 Red States v. 200 chests of tea), 8 Peters, 272 ited States v. sugar), 1 Sumner, 159 “ted States v. Breed), 10 Peters, 272 (Elliott = Startwout).

terials of which they may be made, or the use to which they might be applied. Nor ought such laws to be construed as embracing all articles which might subsequently be applied to the same use and purpose as the specific article. If it had been the intention of Congress to impose the duty upon all articles used for bagging cotton, the language of the act would have been different, and in terms prospective, adapted to such purpose. It has been argued, on the part of the United States, that the duty was intended to be laid on all articles used for bagging cotton, 1. The construction claimed here by the because the duty is laid on cotton bagging porters is fully admitted by the government" without regard to weight or measure." These the Act of August 30th, 1842, whereby cot- terms, weight or measure, were intended to bagging and gunny cloth are subjected, as apply to different materials then in use for bagfact articles, to different rates of duty. (Acts ging cotton, such as hemp, flax, and sometimes r 27th Congress, 2d session, p. 180, section 3, cotton cloth, &c., and not to any new articles ise 3.) that might thereafter be applied to that use. So that the whole question of fact for the jury is whether gunny cloth was, in commercial understanding, known as cotton bagging when the law was passed laying the duty, in 1832. If it was not, they will find for the plaintiffs; if it was, they will find for the defendant.

r Chief Justice TANEY delivered the opin

:f the court:

This case comes before the court upon a writ error directed to the Circuit Court for the thern District of New York. The action brought by the defendants in error against laintiff, who was the collector of the port New York, to recover back $4,500, which been paid, under protest, as duties upon in goods imported into the port of New . in April, 1841. The goods in question gunny cloths, and were charged by the Pctor as cotton bagging.

The defendants in error offered evidence to Low that, in 1832, when the law passed imsing the duty on cotton bagging, the article estion was not used or known as cotton ing; that it was then only seen in the form as for India goods; that the first importaof gunny cloth, to be used as cotton bagz was in 1834. It is made from the yute

The plaintiff in error proved that these goods, 09*] at the time of the importation, were wn in commerce as cotton bagging; that they The made of the proper. width for that pur, and for several years before this importaunny cloths had been imported and used cotton bagging; and that the goods in queswere imported from Dundee, in Scotland. on this evidence, the counsel for the deant contended that if the jury found that article gunny cloth was, in commercial rstanding, known as cotton bagging at the - of its importation, it was subject to a duty; that the term "cotton bagging," according

To this charge, in every respect, the defendant's counsel excepted.

The jury found a verdict for the plaintiffs for $4,543.17, and six cents costs.

The question brought up by this exception cannot now be considered as an open one. the case of The United States v. 200 Chests of Tea (9 Wheat., 438), the court decided that in imposing duties Congress must be understood as describing the article upon which the duty is imposed according to the commercial understanding of the terms used in the law, in our own markets. This doctrine *was re-af- [*110 firmed in the case of The United States v. 112 Casks of Sugar (8 Peters, 277), and again in 10 Peters, 151, in the case of Elliott v. Swartwout. It follows that the duty upon cotton bagging must be considered as imposed upon those articles only which were known and understood as such in commerce in the year 1832, when the law was passed imposing the duty.

In the case before us, the Circuit Court followed the rule of construction above stated, and it has been followed also in every circuit where the question has arisen.

The judgment is therefore affirmed.

Cited 4 How., 334; 7 How., 797; 1 Otto, 363; 2 Otto, 470; 6 Otto, 111; 3 Blatchf., 394.

ise commercial understanding of the phrase, SAMUEL SWARTWOUT, Plaintiff in Error,

H fed any fabric, without regard to the maal of which it was made, that was used to Ge or cover cotton, and prayed the court so to ge the jury.

JOHN GIHON ET AL.

honor the judge refused so to charge the Contesting payment of duties-Notice need not

, but, on the contrary thereof, charged that int upon which this case turns is for the ion of the jury, viz.: whether the article estion in this case was known as cotton ing in the year 1832, when the Tariff Act passed. It has long been a settled rule of traction of revenue laws, imposing duties articles of a specified denomination, to con

be in writing.

When an importer means to contest the payment of duties, it is not necessary for him to give a written notice thereof to the collector.

NOTE. As to voluntary payments, and payments be recovered back, see note to Bank of United States under protest, and when money illegally exacted may v. Bank of Washington, 6 Pet., 8.

EDWARD CURTIS, Plaintiff in Error, language it has sin

ging; but in 1832,
the tariff of that

WILLIAM MARTIN AND CHARLES A. The counsel for

COE, Defendants.

Duties upon imports-descriptive terms used in act construed according to commercial usage at time.

An act of Congress imposing a duty upon imports must be construed to describe the article upon which the duty is imposed, according to the commercial understanding of the terms used in the law in our own markets at the time when the law was passed.

The duty, therefore, imposed by the Act of 1832 upon cotton bagging, cannot properly be levied upon an article which was not known in the market as cotton bagging in 1832, although it may subsequently be called so.

the trial in the (
was, in comme
cotton bagging
was subject to
bagging signi
the materials
used to bale

court so to
fused; but,
point upon
the article
bagging
was pass
settled r
posing

THIS Court of the United design

HIS case was brought up by a writ of error nation

States for the Southern District of New York. know
It was an action brought in the court below the n
by Martin & Co. against Curtis, the collector, use t
for return of duties upon certain importations suc
of gunny cloth, from Dundee, in Scotland, cle
from April to September, 1841.

The facts in the case are clearly stated in the be following brief of Mr. Nelson, Attorney-Gen- | d eral, who argued the case on behalf of Curtis, ' ↑ the plaintiff in Error:

This was an action brought by the defendants in error against Curtis, as collector of the port of New York, to recover back the sum of $4,543.17 of duties, levied by him on a certain article as cotton bagging, which, they co tended, was gunny bagging, a non-enumerat article in the tariff of 1832, and therefore di free; and the question in the cause was, whet this kind of bagging was cotton bagging w in the meaning of the revenue laws. The d were paid under written protest annex each entry.

By the tariff of 1832 it is enacted, the cotton bagging three and a half cents a yard, without regard to the weight or v the article," of duty shall be collected duty, modified by the Compromise chargeable when the goods were impo

The imported article, used as bagg packing of cotton, is principally ma in the town of Dundee, in Scotlan the bagging of Kentucky, was mað until the material of which the gu India is manufactured began to b ging for cotton has also been mad

Gunny (Bengalee Gúni) is a 107*] sackcloth, manufactur for making into bags, sacks, an erally, the material being the fil natives of India, as hemp orig article" Gunny," in McCullo Commerce, American edition

Gunny bagging is now ma land, as well as in India; ar on the part of the defenda importations in question and were made into New months of April and Sep

It was established, by sides, that gunny cloth into this country, sole packing of cotton, sin 516

and bett prior deli of the sher tition was fil

the judges were Hon; whereupon, on the plaintiff, the que ed to be certified to the St -ion.'

forehead and B. Monroe f

Card French for the defendant argument on behalf of the plainti

wo questions arise: 1st. Did Best, the possession and the plaintiff in the exe der which the sale of land was made.a any lien, such as is recognized by the latte viso *of the 2d section of the bankrupt [* law, before the execution was in fact levi 2d. If any such was acquired, is it effe 1. to against the rights of the assignee of the

The

int is a

All judgments rendered at the same term equal liens on the real estate of the defen on the however the executions have been issued and was levied, provided the levy has been made with -the ele- year. 2 Ohio, 395; 3 Id., 366; 5 Id., 52; McLe McLean, Rockey, 3 McLean, 235. The lien of a judgment on the lands of the de y of the created by statute, and limited to a certain that time of time, is unaffected by the circumstance defendant plaintiff not proceeding upon it until a subse wart Sturges lien has been obtained and carried into execul 1 West. Rankin v. Scott, 12 Wheat.. 177: Green v. Alle Wash. C. C., 280; Griswold v. Hill, 2 Paine. 42 If a judgment become dormant, its lien is lo

HOWAR

commit- our statute only from the day of its delivery to could the officer. According to the adjudications of the the English courts. on the bankrupt laws of that country anterior to the 36 George III. and the George IV., the uniform and well settled 'ne was that the assignee had a right to all the transactions of the bankrupt

to the first act of bankruptcy, and neys or property. which passed but by the 18th section of 1. bona fide trans- [*113 than two calendar

suing the commisand all executions his lands or chattels vied more than two the issuing of the comalid, "notwithstanding ptcy, provided the parties

v has this proviso in the 2d ): "That all dealings and nd with the bankrupt, bona entered into more than two ne petition filed against him or not be invalidated by this act, the other party to any such dealactions had no notice of a prior ruptcy, or of the intention of the o take the benefit of this act." provisos have no bearing upon the involved. No reference is here made executions or attachments, as in the Entatute, but they are left to be governed e last proviso of the 2d section. ne binding effect of writs of fieri facias in gland, by the common law, was from the ste; by the statutes of Kentucky it is from he delivery to the sheriff; but in the character of this binding effect there is believed to be no other distinction but in respect of the time of its commencement. It may be proper, then, to d, learn what was the course of adjudication by ach the English courts upon this question.

Cooper v. Chitty (2 W. Black., 65; 1 Burr., 20). vas at it is said if a sheriff take goods of a bankrupt bank-in execution after the act of bankruptcy and before before commission issued, and sell them after filing of the commission, trover will lie against him. equent to At common teste, but by

the judgment of the judgment Id., 435; Tracy v.

ves his debt against
his judgment as a
ankrupt. Briggs v.

4d under the Bankrupt
fayette B'k, 3 McLean,
300; Aff'd, 13 How., 151;
an, 507.

s rendered in the courts of
iens upon the defendant's
where similar judgments or
ourts are made liens by the
ard v. Chamberlain, 2 Black,
w Reg., 330; 9 Id., 171; Lombard
Jun., C. C., 196; 6 How. (Miss.),
iams v. Benedict, 8 How., 107.
- where a judgment in the State
anen, a judgment in a court of the
has that operation throughout the
.ch its jurisdiction extends, and State
Modifying the lien of judgments, or re-

Again, the sheriff seized the goods of a defendant under a fieri facias, and sold and delivered them to the judgment creditor, in satisfac

stricting their operation, cannot affect the lien of judgment in the courts of the United States. Massingill v. Downs, 7 How., 760; Konig v. Bayard, 2 Paine, 251.

Judgments and decrees rendered in the United States courts, and duly recorded, become liens upon land of the judgment debtor lying within the district where they are rendered. It is not necessary they should be registered in any State office. Cropsey v. Crandall, 2 Blatchf., 341; Crandall v. Cropsey, 10 N. Y. Leg. Obs., 1; Lombard v. Bayard, 1 Wall., Jun., C. C., 196.

Section 967 of U. S. Rev. Stat. does not vest in the court the discretionary power to make an order exempting lands from lien of judgment according to provisions of New York Code of Procedure during pendency of an appeal. Myers v. Tyson, 13 Blatchf., 242.

Judgment is not a lien on lands in Dist. of Columbia which before judgment was rendered was conveyed to trustees with power of sale to secure the payment of certain debts of the grantor specified in the trust deed. Morsell v. First Nat'l B'k, 1 Otto, 357.

Judgment is a lien upon an equity of redemption

The question of notice is a fact for the jury, and it makes no difference, for the purposes for which it is required, whether it is written or verbal.

the sheriff; and this lien is as absolute before th levy as it is afterwards.

Therefore, a creditor is not deprived of this li by an act of bankruptcy on the part of the debt execution is in the hands of the sheriff.

HE facts in this case are sufficiently set forth committed before the levy is made, but after th

Tin the following opinion.

Mr. Chief Justice TANEY delivered the opin

ion of the court:

THI

HIS case came up from the Circuit Court the United States for the District of Ke

tucky, on a certificate of division in opinion h tween the judges thereof.

The following is the entire record in th

case:

The following statement of questions ar points of law which arose in this case, and th adjournment thereof into the Supreme Cou of the United States for decision, was order to be entered, to wit:

This case comes before the court upon a writ of error directed to the Circuit Court for the Southern District of New York. The action was brought by the defendants in error against the plaintiff to recover back certain sums of money paid to him as duties on brown linens, imported into New York in 1836, of which port he was at that time the collector. Some of these duties were paid under protest in writing, and some without any written protest or notice, but 'Savage had the title to the land; the plain evidence was offered for the purpose of show-iff claimed under the decree of his bankruptc ing that the defendants in error verbally noti- the defendant, under a sheriff's sale under a fied the collector that the duties charged on all execution. of these goods would be contested. The goods in question were unbleached linens, and had been charged with duty as colored; and the jury found a verdict against the collector for the amount claimed.

At the trial, the court instructed the jury that a written notice of the objections to pay the duties was not necessary, and that it was sufficient if a verbal notice was brought home to the collector; but that the jury must be satisfied that such notice was brought home to him. To this direction the plaintiff in error excepted; and it is upon this point only that the case comes before this court.

The only object of the notice was to warn the collector that the party meant to hold him personally responsible for the money, whether he paid it over or not. It was a question for the jury to decide whether notice was or was not given; and it could make no difference, for the purposes for which it was required, whether it was written or verbal.

We think the charge of the court was clearly right, and the judgment is therefore affirmed. Cited-4 How., 332.

111*] *LESSEE OF HENRY WALLER, Assignee of the Bankrupt Estate of FRANCIS A. SAVAGE, Plaintiff,

JAMES AND JOSEPH BEST.

"The act of bankruptcy of savage w committed on the 27th April, 1842; the petiti of his creditors was filed against him in t District Court on the 25th day of June, 18 and he was declared a bankrupt on the 26th October, 1842; the plaintiff was appointed t assignee, and this is his title.

"An execution of fieri facias on a judgme against the estate of Savage was delivered to t sheriff on the 9th of April, 1842, before the of bankruptcy, and was levied on the land the day of before the petitio but after the act of bankruptcy the defends purchased at the sheriff's sale, had his de and this was his title.

"The question was, has the plaintiff, by t decree of bankruptcy and its relations back the act of bankruptcy, the elder and better ti or has the defendant, by the prior delivery the execution into the hands of the sheriff, a his levy of it before the petition was filed, prior and superior title?

and opposed in opinion; whereupon, on mot "On this question the judges were divid of the counsel of the plaintiff, the question stated and ordered to be certified to the Supre Court for decision."

Messrs. Morehead and B. Monroe for 1 plaintiff.

Mr. Richard French for the defendants: The argument on behalf of the plaintiff w this:

Two questions arise: 1st. Did Best, the ter in possession and the plaintiff in the executi under which the sale of land was made, acqu any lien, such as is recognized by the latter

Lien of Creditor in Kentucky attaches on de- viso *of the 2d section of the hankrupt [*11

livery of a fi. fa. to sheriff.

In Kentucky, the creditor obtains a lien upon the property of his debtor by the delivery of a fi. fa. to

NOTE.-When and to what extent a judgment is a lien upon lands.

At common law, a judgment was no lien on the real estate of the defendant. But as his land was made liable to satisfy the judgment under the clegit, this created a lien. Shrew v. Jones, 2 McLean, 78; Scriba v. Deanes, 1 Brock. Marsh., 166.

A judgment has relation to the first day of the term at which it was rendered; and from that time it constitutes a lien on the lands of the defendant lying within the jurisdiction of the court. Sturges v. B'k of Cleveland, 3 McLean, 140; S. C., 1 West. Law J., 207; B'k of Cleveland v. Sturges, 2 McLean, 341; Rockwell v. Hanna, 4 McLean, 554.

law, before the execution was in fact levied 2d. If any such was acquired, is it effect against the rights of the assignee of the bar

All judgments rendered at the same term equal liens on the real estate of the defenda however the executions have been issue-i levied, provided the levy has been made within year. 2 Ohio, 395; 3 Id., 366; 5 Id., 52; McLeat Rockey, 3 McLean, 235.

The lien of a judgment on the lands of the debe created by statute, and limited to a certain pez of time, is unaffected by the circumstance of plaintiff not proceeding upon it until a subsequ lien has been obtained and carried into executi Rankin v. Scott, 12 Wheat.. 177; Green v. Alle z Wash. C. C., 280; Griswold v. Hill, 2 Paine. 492.

If a judgment become dormant, its lien is lost

our statute only from the day of its delivery to the officer. According to the adjudications of the English courts. on the bankrupt laws of that country anterior to the 36 George III. and the 6 George IV., the uniform and well settled doctrine was that the assignee had a right to overhaul all the transactions of the bankrupt subsequent to the first act of bankruptcy, and recover all moneys or property which passed through his hands; but by the 18th section of the 6 George IV. *" all bona fide trans- [*113 actions entered into more than two calendar months before the date and issuing the commission against the bankrupt, and all executions and attachments against his lands or chattels bona fide executed or levied more than two calendar months before the issuing of the commissions," are made valid, "notwithstanding any prior act of bankruptcy, provided the parties had no notice of it."

rupt, when the act of bankruptcy was committed before the levy of the execution? Or could the execution, in virtue of the lien given by the State law, which was in the hands of a sheriff, but not levied before an act of bankruptcy, be afterwards levied, and the property sold? These questions render it necessary to look to the character of the lien given by the statutes of Kentucky in favor of execution creditors, and when that lien commences. The statute of Kentucky (1 Stat. Law, 636) provides "that no writ of fieri facias, or other writ of execution, shall bind the estate of the defendant or de fendants but from the time such writ shall be delivered to the sheriff or other proper officer to be executed." What is the import of the term “bind,” as used in the statute? That it has some binding effect is evident, but to what extent? Is it a lien within the meaning of the proviso of the bankrupt law? It is insisted that it is not, but is only so far binding as to prevent Our bankrupt law has this proviso in the 2d such disposition of the property by the defend- section (1st proviso): "That all dealings and ant as will defeat the execution so in the hands transactions by and with the bankrupt, bona of the officer; and does not so far bind the prop-fide made and entered into more than two erty as to prevent other execution creditors from levying their executions upon the debtor's property. (See Tabb v. Harris, 4 Bibb, 229; and Kelly v. Haggin, 2 J. J. Marshall, 212.) In the latter case the court use this language: "The only object of attaching a lien to an execution is to prevent the debtor from defeating These provisos have no bearing upon the the creditor by alienating or embarrassing his questions involved. No reference is here made estate. The reason of the lien, in such a case, to any executions or attachments, as in the Endoes not apply to competition between credit-glish statute, but they are left to be governed ors, and cessante ratione cessat lex, moreover, by the last proviso of the 2d section. it is but sheer justice to give the preference to the creditor who by his superior industry and vigilance shall have procured the first levy on the debtor's estate." This interpretation of the statute shows what is the character of that binding spoken of in the statute, and that it does not amount to the lien referred to in the bankrupt law until the execution be in fact levied, when it may be admitted that it amounts to such ben.

2d. The proceedings against Savage was at the instance of a creditor. The act of bankruptcy complained of was committed before any levy of the execution, though the filing of the petition and the decree were subsequent to the levy of the execution of Best. At common law a fieri facias had relation to its teste, but by

against a mortgage executed by the judgment creditor during the continuance of the judgment lien. 5 Ohio, 178; 10 Id., 403; 15 Id., 435; Tracy v. Tracy, 5 McLean, 456.

A judgment creditor who proves his debt against a bankrupt, thereby surrenders his judgment as a in on the lands of the bankrupt. Briggs v. Stephens, 7 Law Rep., 281.

Judgment liens protected under the Bankrupt Act of 1841. McLean v. Lafayette B'k, 3 McLean, 57; S. C., 1 West. Law J., 300; Aff'd, 13 How., 151; Kemper v. Bavey, 5 McLean, 507.

Judgments and decrees rendered in the courts of the United States are liens upon the defendant's al estate in all cases where similar judgments or decrees of the State courts are made liens by the Law of the State. Ward v. Chamberlain, 2 Black, 4); S. C., 5 Am. Law Reg., 330; 9 Id., 171; Lombard v. Bayard, 1 Wall., Jun., C. C., 196; 6 How. (Miss.), 352; 7 14., 324; Williams v. Benedict, 8 How., 107.

In those States where a judgment in the State Courts creates a lien, a judgment in a court of the United States has that operation throughout the district to which its jurisdiction extends, and State legislation, modifying the lien of judgments, or re

months before the petition filed against him or by him, shall not be invalidated by this act, provided that the other party to any such dealings or transactions had no notice of a prior act of bankruptcy, or of the intention of the bankrupt to take the benefit of this act."

The binding effect of writs of fieri facias in England, by the common law, was from the teste; by the statutes of Kentucky it is from the delivery to the sheriff; but in the character of this binding effect there is believed to be no other distinction but in respect of the time of its commencement. It may be proper, then, to learn what was the course of adjudication by the English courts upon this question. In Cooper v. Chitty (2 W. Black., 65; 1 Burr., 20), it is said if a sheriff take goods of a bankrupt in execution after the act of bankruptcy and before commission issued, and sell them after the commission, trover will lie against him.

Again, the sheriff seized the goods of a defendant under a fieri facias, and sold and delivered them to the judgment creditor, in satisfac

stricting their operation, cannot affect the lien of judgment in the courts of the United States. Massingill v. Downs, 7 How., 760; Konig v. Bayard, 2 Paine, 251.

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