ing. Thus a protest "that these goods were consigned to me by the manufacturer thereof, and are not liable for the reasons stated," does not allow the party to show that the goods were owned and imported by the manufacturer.1

2

A protest is necessary to recover back the twenty per cent. penalty, when it is imposed, or any fees or other charges illegally exacted, though formerly it was not so.3 Under the act of 1846, where the appraisement was the basis of dutiable value, it was held to be conclusive in all cases as to the regularity of the appraisal, unless there was protest and appeal. It may well be doubted if there is any necessity for an appeal from the appraisement under the Revised Statutes. If there be, the appeal from the decision of the collector, and the protest point out the grounds of it, and would seem to be sufficient.

The following protests have been decided sufficiently definite, "against the payment of duty on 2,939.52 florins as per entry, claiming a discount of 18 per cent. as per consul's certificate." Under this protest it could be shown either that the certificate was produced, or that the importer offered to produce it, and the collector refused to be governed by it. So a protest in these words: "We herewith protest against the additional value of the United States appraisers and merchant appraisers, and twenty per cent. penalty charged on the within 150 bales of rags, claiming to enter the same according to the invoice and actual cost, but pay the same to get possession of the goods," is good without a specification as to how the appraisement was made to exceed the true value of the goods. Where a duty of twenty-five per cent. was imposed on certain goods as cotton laces, a protest against payment of twenty-five per cent. duty charged on thread laces (or loom thread laces), claiming that said laces are liable to a duty of twenty per cent.," was held sufficient, because it points out distinctly to the collector that the goods are only liable to twenty per cent. as "thread laces." Some protests state the schedule and name under which the importation should be classed, but it is not necessary."

The appraisers are required to make an actual examination of the packages sent to the public storehouse by the collector. Where this

1 Warburg v. Maxwell, 3 Blatch. C. C. 382.

? Krisler v. Morton, 2 Curt, C. C. 239; Falleck v. Barney, 5 Blatch. C. C. 38.

'R. S. U. S. § 2932; Ogden v. Maxwell, 3 Blatch. C. C. 319.

4 Morris v. Maxwell, 3 Blatch, C. C. 143; Roller v. Maxwell, 3 Blatch. C. C. 142;

Call v. Lawrence, 3 Blatch. C. C. 360.

5 Craig v. Maxwell, 2 Blatch. C. C. 545.

Loewenstein v. Maxwell, 2 Blatch. C. C. 401.

Mc

7 Steegman v. Maxwell, 3 Blatch. C. C. 365; s. p. Schuchardt v. Lawrence, 3 Blatch. C. C. 397.

was not done, but the examination was by samples, the protest was "that the goods were not fairly and faithfully examined by the appraisers." This protest in the Supreme Court of the United States was held to be sufficient. It was thought to point out distinctly the source of the complaint, and it was not necessary to set out specifically the reasons on which the complaint was founded.1 This is the only case on the sufficiency of the protest which has been decided by the court of highest resort. The other cases cited are from the lower courts, and are not so liberal in their construction of such an instrument. The effect to be given to it has been a subject of comment in many of the cases cited, which have a tendency to restrict its effect. It is a fact perhaps worth the attention of the reader to notice, that Justice Nelson was one of the dissenting justices in this case, and that almost all of the cases cited on the subject are from his circuit.

The period when the protest is to be given is that of the liquidation of the duties by the collector. That period when the goods are entered for warehousing is the time of the withdrawal entry for consumption. If the goods are not warehoused, but entered for consumption, it would be at the time of the payment of the duties."

It will be noticed that § 3011 requires a protest in order to get possession of the goods, and requires it to set forth distinctly the grounds of the objection to the amount claimed. But § 2931 requires also that within ten days from the liquidation of the entry the importer shall give notice of his dissatisfaction to the collector, setting forth distinctly and specifically the grounds of objection to his decision. How are these two statutes to be construed? If at the time of withdrawal from the warehouse, and payment of duties, no protest is made, but within ten days an appeal is taken and notice of dissatisfaction given under § 2931, is it sufficient? or, could it be said in accordance with decisions heretofore cited, that the payment was not made to obtain possession of the goods because there was no protest at the time of payment? The only proper and just mode is to consider the two together. The objects of the statute were evidently to require the differences between the government and the importer to be settled at the earliest opportunity, to have those differences pointed out distinctly and clearly, to require this to be done within a limited period, and to confine the importer to specified tribunals in a certain order. The notice of dissatisfaction is nothing more than the protest; § 3011 refers to the protest, and § 2931 refers not only to the protest but

1 Greeley's Adm'r v. Burgess, 18 How. 413.

2 Little v. Redfield, 4 Blatch. C. C. 41; Marriot v. Brune, 9 How. 619.

also to the appeal to the secretary, and the mode of proceeding in relation thereto.

The question is often raised, whether a protest which is good in form can be made to extend prospectively to future importations. A protest against payment of duties, made on a particular importation of merchandise, and expressing the intention of the importer that the protest shall apply to all future similar importations of similar merchandise, on which the same duties are imposed, is valid.1 The courts have not been disposed to extend at all the principle of prospective protests. Prospective protests are substantially forbidden now, for by the express terms of § 2931 there must be a notice of dissatisfaction and appeal on each entry by the importer. This section is the reproduction of the act of 1864, which made a radical change in the act of 1857, which was the first act imposing the condition of the appeal and notice in ten days. Where there was no protest, it has been claimed that the Court of Claims had jurisdiction if the duties had been illegally exacted, but the position was not sustained. That court has no jurisdiction in revenue cases, and the act establishing the court does not extend to such matters."

The owner of the merchandise may sue in his own name; it is not necessary to sue in the name of the consignee. In addition to the various other conditions which are attached to the right to sue for duties illegally exacted, the person suing is required to file a bill of the particulars of his claim. This is to be served on the defendant or his attorney, in thirty days after due notice of the appearance of the defendant. The items are specified in the statute, and are very full, giving in fact a full description of the whole transaction. The service of this bill of particulars is one of the conditions on which the importer is entitled to maintain his suit, for if not served, or if any of the items are omitted, a judgment of non pros. will be entered against the plaintiff."

The remedy of the importer, by action against the collector for duties illegally exacted at the time of the decision of Elliot v. Swartwout, has been greatly modified, though the principle at the foundation is the same, that the collector has exceeded his authority in imposing duties in excess of those required by the statute. The modi

1 Wetter v. Schell, 11 Blatch. C. C. 193; Marriot v. Brune, 9 How. 619; Boker v. Bronson, 4 Blatch. C. C. 472; Hutton v. Schell, 6 Blatch. C. C. 48.

2 Baxter v. Maxwell, 4 Blatch. C. C. 32.

3 Ullman v. Murphy, 11 Blatch. C. C. 354.

Nichols v. United States, 7 Wall. 122.

5 Mason v. Kane, Taney's Dec. 173.

710 Peters, 137.

R. S. U. S. § 3012.

fications are as to the remedy. We have endeavored to trace these through their successive changes to the present time, when the importer has to run quite a gauntlet of conditions before he can proceed with his suit against the collector for exceeding his authority, from the appeal and notice of dissatisfaction in ten days from the liquidation, down to the service of the bill of particulars on the defendant.

If the importer has been prevented by circumstances beyond his control, or that of his consignee or agent making payment of duties, from taking the appeal to the Secretary of the Treasury in the mode prescribed, then the Secretary of the Treasury, if satisfied that more money has been paid than is due, and also that the appeal was not taken for the reasons just stated, may draw a warrant on the treasurer, directing him to refund the amount which has been overpaid.1

Damage to Merchandise.-Under the head of the duties of appraisers, it has been seen that where the importer filed a claim within ten days, for damage to merchandise during the voyage, the appraisers ascertained that damage. If it was not correctly ascertained as to the error, the amount paid erroneously may be recovered in the same manner as any other exaction which is illegal. The statute contemplates that this damage shall be ascertained at the port of entry, but in the case of merchandise entered for transportation, where the examination is only partial, the damage may not be ascertained until the arrival at the designated port in the interior. Can it be allowed by the appraisers at that port where the examination is made and cargo discharged? The practice of the treasury department, under advice of the attorney general, is to allow the appraisement of damage in such cases on arrival at the designated port, but in all other cases it is required to be made at the port at which the vessel originally enters.2 But the department does not consider that damage not accruing on the voyage, but received between the port of entry and the port of destination, is included under the statute."

The Secretary of the Treasury is also allowed to abate or refund duties on merchandise, where there has been injury or destruction of such merchandise by accidental fire, or other casualty, while in custody of the customs officers, either before the landing, or when in the warehouse or appraiser's store, or during transportation in bond. The department does not consider that damage by leakage from the roof of a warehouse, which injures merchandise in bond, comes within this

1 R. S. U. S. § 3013.

2 21 Int. Rev. Rec. 305; Treasury Circular Aug. 20, 1875.

3

21 Int. Rev. Rec. 108, instructions to surveyor of customs at Louisville, Ky., Feb. 27, 1875; 21 Int. Rev. Rec. 95, letter to surveyor of customs, St. Louis, Mo.

statute, nor that damage to champagne by freezing while in transit from the port of entry is within its terms. Damage to goods by careless repacking after examination at the public store, does come within it.8

Drawback.-This is an allowance made to a party who exports merchandise which has been imported. The goods must be over the value of fifty dollars, and the privilege must be exercised within three years from the date of importation. One per cent. of the amount of duties which have been paid, and as to which the drawback is claimed, is retained for the government. The articles subject to drawback are enumerated in the statute. No part of any discriminating duties on account of the importation being in a foreign vessel can be allowed," nor can penal duties be refunded as drawback, and the goods must not have been removed from the custody of the United States. There are certain exceptions specified in the statutes. Entry is to be made of the merchandise, and it is appraised and loaded under the supervision of the customs officers. The debenture for the drawback may be made payable to the original importer, when requested by the exporter, and is assignable by delivery and indorsement. Before the debenture is received, the exporter is required to give bond in double its amount, conditioned that such merchandise, or any part thereof, shall not be landed in any port within the limits of the United States, and that he will produce proof and certificates that it has been delivered without such limits. The debentures are payable fifteen days after the giving of this bond.

Tonnage Duty and Light Money.-This duty is to be imposed on all vessels which enter at any custom house in the United States, domestic and foreign. Coasting vessels are exempt, and those making daily trips from the United States to Canada are to be charged only on the first clearing of the vessel during the year. This tax is to be imposed but once in a calendar year, either at the entry or clearance of the vessel, whichever first happens. From the decision of the collector imposing a tonnage tax, an appeal may be taken in the same

1 21 Int. Rev. Rec. 100, letter to collector of customs at Boston, Feb. 6, 1875. 21 Int. Rev. Rec. 95, letter to surveyor of customs at St. Louis, Mo., Jan. 30, 1875. 3 22 Int. Rev. Rec. 383; Treasury Circular, No. 2969.

4 R. S. U. S. §§ 3015 to 2018.

6

R. S. U. S. §§ 3017 to 3027.

R. S. U. S. § 3027; Bartlett v. Kane, 16 How. 263; Spence v. United States, Dev. Ct. Cl. 76.

R. S. U. S. §§ 3033 to 3044.

R. S. U. S. §§ 3032, 3033.

R. S. U. S. §§ 4219 to 4225; and see § 4226, as to exemption of vessels unregistered carrying a sea letter.