# Bend v. Hoyt/Opinion of the Court

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* Opinion of the Court
* Dissenting Opinion Thompson
United States Supreme Court
38 U.S. 263
Bend v. Hoyt
This case comes before us upon a certificate of division of opinion of the judges of the Circuit Court of the southern district of New York. The original suit was assumpsit to recover back from the defendant, who is the collector of the port and district of New York, a sum of money paid as duties upon certain imported goods, upon the ground that they were not liable to duty. Upon the trial it appeared, that on the 29th of March, 1837, an entry was made by the plaintiff, as consignee, at the customhouse of New York, of eight cases of cotton gloves, marked B, numbered from 38 to 45, as imported from Liverpool, England. The case, number 43, was designated on the invoice to be examined, and was passed as correct; whereupon the duty was levied upon each of the eight packages at 25 per centum ad valorem, as being cotton gloves; which duty was secured by a bond, which became due on the 27th of June, 1838. Upon making the entry, the invoice of the goods was produced, and the common oath on such occasions taken and subscribed in the form prescribed by law. It was proved, that in the year 1838, it was discovered by the plaintiff, that the case numbered 45 did not contain cotton gloves, but actually contained silk hose; and that the plaintiff had paid $127 92 for duties, under the belief that the package contained cotton gloves. On the 25th of April, 1838, the plaintiff addressed a letter to the comptroller of the treasury, requesting to be released from the payment of the duty; to which the comptroller replied on the 27th of the same month, refusing to do so, upon the ground that whether the goods were composed of silk or of cotton was clearly a matter of fact, and should have been settled before the removal of the goods from the customhouse; and that he did not feel authorized to make the plaintiff's case an exception to the uniform and long established rule of the department, by permitting a revision of the entry. On the 26th of June, 1838, the plaintiff addressed a letter to the defendant, informing him that no duties were payable on the goods; and that in paying the amount he should do it under protest, reserving his legal rights. It was further proved, that the package number 45 never was in the custody of the collector, nor subjected to the examination of the public appraisers; and that the first intimation that the collector had, that it contained silk hose, was in March or April, 1838. The merchandise contained in the package number 45 was silk hose made of the tow of silk, a coarse quality of silk, but still silk, sometimes called sponged silk; and was well known in commerce under the denomination of hosiery. An affidavit of the plaintiff was read in evidence by the defendant, to show the habitually loose manner in which the plaintiff transacted his business with the customhouse; and in which, among other things, the plaintiff attributed the error in the entry at the customhouse to the ignorance of his own clerk in making the entry, and not being able to understand, from the wording of the invoice, which packages contained gloves, and which hosiery.
Upon this evidence the following points were presented by the defendant for the opinion of the judges, on each of which the judges were divided in opinion. 1. Whether, assuming that an excess of duties was paid by mistake, under the facts above stated, to the collector, on the before mentioned package number 45, the plaintiff, under the said facts, is entitled to recover back such excess in a personal action against the collector. 2. Whether the said silk hose was subject to the payment of duty imposed on hosiery by the second clause of the second section of the act of the 14th of July, 1832, ch. 224, entitled, 'An act to alter and amend the several acts imposing duties on imports;' or whether, as manufactures of silk, not being sewing silk, the same were exempted from the payment of duty by the fourth section of the act of the 2d of March, 1833, entitled, &c., ch. 354, which declares that all manufactures of silk, or of which silk is the component material of chief value, coming from this side of the Cape of Good Hope, except sewing silk, shall be free.
As to the first question, there is no doubt that the collector is generally liable in an action to recover back an excess of duties paid to him as collector, where the duties have been illegally demanded, and a protest of the illegality has been made at the time of the payment, or notice then given that the party means to contest the claim; whether he has paid over the money to the government or not. Nor is there any doubt that a like action generally lies where the excess of duties has been paid under a mistake of fact, and notice thereof has been given to the collector before he has paid over the money to the government. Both of these propositions are fully discussed and decided in the case of Elliot vs. Swartwout, 10 Peters' R. 137; and if the present point involved nothing more, there would be no substantial ground of controversy. But there are other ingredients in the present case.
The goods were actually entered by the plaintiff at the customhouse, by a particular description-that of cotton goods; and he then swore that the invoice then produced by him was the true invoice received by him, and that the entry contained a just and true account of the same goods; and upon the faith of that entry and oath, the goods were actually delivered to him by the collector without any examination whatsoever. No notice was given to the collector of any mistake until nine or ten months afterwards, when the government was no longer in a condition to ascertain the real state of the facts; and when, of course, it was compelled to rely exclusively upon the evidence furnished by the plaintiff. Now, certainly, it was the duty of the plaintiff, before making the entry at the customhouse, to have exercised due diligence in examining his papers, and ascertaining the true state of the facts, before he undertook to verify them under the solemnity of an oath. That he was grossly negligent in this particular is plain from his own showing; and that the loss, if any has accrued to him, has accrued from his negligence and inattention to his duty, is equally clear. The question then arises, whether this action is maintainable, not under ordinary circumstances of innocent mistake, but under circumstances of culpable negligence on the part of the plaintiff, and when the government can no longer be replaced in the same situation in which it stood at the time of the original transaction. Upon the best consideration which we can give to the subject, we are of opinion, that the action, under such circumstances, is not maintainable. If a different rule were to prevail, the whole policy of the laws for the collection of duties would be broken in upon; there would be no certainty whatsoever as to the amount or receipt of the revenue; and the grossest evasions and frauds might be practised with perfect impunity. Instead of the invoice or entry, with the accompanying oath of the party, furnishing the just means of ascertaining the nature, and quality, and character of the goods imported, and the amount of duties payable thereon; every thing would be left loose, and open, in case of contest, to the uncertain evidence to be produced before successive juries. The whole system of guards introduced into the revenue laws, for the purpose of ascertaining the nature, quality, description, and value of imported goods, would in a short time, amount to little more than forms, as vexatious as they would be inefficacious. The act of 1823, ch. 149, in amendment of the former acts for the collection of duties, manifestly lays great stress on the invoice, produced at the time of the entry of the goods at the customhouse, and the accompanying oath of the importer; as the trust and best means of ascertaining the nature, and quality, and values of the goods, and the basis of the duties to be charged thereon; as is apparent from the series of sections from the fourth to the fifteenth sections. Invoices duly verified and authenticated, are deemed a sufficient title to entry; while others, not so verified and authenticated, are declared to be deemed to be suspected, and liable to be treated in the same manner as fraudulent invoices. And the 23d section of the act provides, that when goods are admitted to an entry upon invoice, the collector shall certify the same under his official seal; and no other evidence of the value of such goods shall be admitted on the part of the owner in any Court of the United States, except in corroboration of such entry. It seems difficult to resist the conclusion, that though the language of this section is confined in its terms to the invoice value of the goods, because the duties were to be calculated ad valorem thereby, yet that, consistently with its professed objects, it ought to be deemed equally conclusive as evidence of the nature, quality, and description of the goods. At all events, it would seem to be against the whole policy of the act, as well as of the other acts of Congress respecting the collection of the revenue, to permit a man to enter packages of goods by one description, under his solemn oath, and thus to withdraw them from the custody of the collector, without any examination of the contents of the packages; and afterwards to insist upon another description totally different, and thereby to change the rate of duties, or to claim an exemption from all duties. The public inconveniences attendant upon such a practice, would alone be sufficient to repel any presumption that Congress intended to authorize it, unless there were some explicit provision in favour of it; and the uniform course of the government to disallow it, furnishes strong evidence that the true construction of the act does not justify the practice. The consignee had his choice at the time of the entry, either to rely on his invoice, or to have the contents of each package examined. He chose the former; and the latter is, on the part of the government, no longer practicable-at least not so far as to be satisfactory or certain in its results. The error, if any there has been, has arisen, as we have already stated, from his own culpable negligence; and Courts of justice do not sit for the purpose of aiding those who seek redress for supposed mischiefs resulting from such negligence. Even Courts of equity will not interfere to assist a party to obtain redress for an injury which he might by ordinary diligence have avoided; and, a fortiori, a Court of law ought not, where the other party has, by the very acts or omissions, lost his own proper rights or advantages.
No case has been cited, and none has come to our knowledge, where an action has been maintained at law, under circumstances like the present; where money has been sought to be recovered for a mistake of fact occasioned by the culpable negligence of the plaintiff, and where the retaining of it on the other side is not unconscientious. The case here cannot be better than it would have been, if the plaintiff had refused to pay the duty bond; and, to an action on the bond, he had pleaded in his defence the very matters now insisted on. It would certainly have been difficult to have framed a plea to sustain such a defence in point of law. If the objection were to be insisted on, that would seem to have been as proper a mode of meeting it as could have been devised; though, looking to the penal consequences of not paying a duty bond, as it withdraws from the party all future credit at the customhouse while it continues, we do not say that the present mode may not also be appropriate. Lord Mansfield, in Moses vs. Macfarlan, 2 Burr. R. 1005. 1012, speaking of an action for money had and received, observed that it lies for money paid by mistake, or upon a consideration which happens to fail, or for money got through imposition, (express or implied), or extortion, or oppression, or an undue advantage taken of the plaintiff's situation, contrary to laws made for the protection of persons under such circumstances. And he added, in one word, the gist of the action is, that the defendant, under the circumstances of the case, is obliged, by the ties of natural justice and equity, to refund fund the money. In Bize vs. Dickason, 1 Term Rep. 285, he also said: The rule has always been, that if a man has actually paid what the law would not have compelled him to pay, but what in equity and conscience he ought, he cannot recover it back again. But where money is paid under a mistake, which there was no ground to claim in conscience, the party may recover it back again by this kind of action. Now, admitting the entire correctness of this doctrine in its full extent, (and no more than general truth can be imputed to it,) it leaves the whole matter open upon which the present controversy turns; and that is, whether there is any want of conscience in the collector's retaining this money. And it leaves wholly unteuched the ground, what would be the effect if the mistake and the payment consequent thereon, had been the consequence of the culpable negligence or misconduct of the plaintiff himself, without any default on the other side, and where thereby he could not be placed in statu quo. Our opinion is, that, upon principle, under such circumstances, no such action is or ought to be maintainable. In Milnes vs. Duncan, 6 Barn. and Cresw. 671, the party was allowed to recover back money paid under a mistake of fact, there being no laches imputable to him; and that was the very ground of the decision. In that case, Mr. Justice Bayley said: If a party pay money under a mistake of the law, he cannot recover it back. But if he pay money under a mistake of the real facts, and no laches are imputable to him, in respect of his omission to avail himself of the means of knowledge within his power, he may recover back the money; and he added, in this case, the question is, whether there was, on the part of the plaintiff, at the time when he made the payment, ignorance of the true state of the facts, or any negligence imputable to him in not availing himself of the means of knowledge within his power. So that we here see it admitted that negligence would constitute a good defence to the suit. In Skyring vs. Greenwood, 4 Barn. and Cresw. 281, it was held that money paid by a paymaster to an army officer, could not be recovered back again, or claimed by way of set off, he having been guilty of a breach of duty and of negligence in not communicating to the officer certain information of the disallowance of the claim of the officer, on which the money was paid by the board of ordnance at an earlier period, when his conduct might have been infiuenced by it. These cases, although not exactly in point with the present, clearly show that even in cases of money paid under a mistake of facts, if the party has been guilty of negligence, or of a breach of his proper duty in the transaction, he is not entitled to recover back the money, if paid, or to retain it, if unpaid, against the other party, whose rights or conduct have been affected by such negligence or breach of duty. We think the principle a sound one, and should not hesitate to adopt it, even if there were no authority to support it. Its application to the circumstances of the present case cannot well be questioned. Here, by the conduct and solemn affirmations, under oath, of the plaintiff, the position of the United States has been entirely changed; the property has been delivered up from the custody of the government, without any search or examination, in the perfect confidence that all was right; and we think the plaintiff is now estopped from setting up his own culpable negligence, to excuse him from the payment of the duties, which, by his own entry and oath, he admitted to be due, and thereby obtained a delivery of the goods.
In this view of the matter, it might not be necessary for the Court to answer the other question, upon which the Court below was divided, as our answer to the first decides the merits of the plaintiff's case. But as the same question is involved in Hardy vs. Hoyt, which has been argued in connexion with the present, we shall now proceed to the consideration of it. The question is, whether silk hose is subject to the payment of the duty imposed on hosiery by the second clause of the second section of the duty act of 1832. ch. 224. That section enacts, that from and after the 3d day of March, 1833, on the articles therein after mentioned, there shall be levied, collected, and paid, the following duties: 'First, wool, unmanufactured, certain duties specified in the first clause. Second, (which is the clause in question,) 'On all milled and felled cloth, known by the name of plains, kerseys, or kendal cottons, of which wool shall be the only material, the value whereof shall not exceed thirty-five cents a square yard, five per centum ad valorem; on worsted stuff goods, shawls, and other manufactures of silk and worsted, ten per centum ad valorem; on worsted yarn, twenty per centum ad valorem; on woollen yarn, four cents per pound, and fifty per centum ad valorem; on mits, gloves, bindings, blankets, hosiery, and carpets and carpetings, twenty-five per cent., except Brussels, Wilton, and treble ingrained carpeting, which shall be at sixty-three cents the square yard, all other ingrained and Venetian carpeting at thirty-five cents the square yard; and except blankets, the value whereof at the place whence exported shall not exceed seventy-five cents each, the duty to be levied upon which shall be five per centum ad valorem; on flannels, bockings, and baizes, sixteen cents the square yard, on warp laces thirty-five per centum; and upon merino shawls made of wool, all other manufactures of wool, or of which wool is a component part, and on ready made clothing, fifty per centum ad valorem.' Now, looking to the terms of this clause, and the connexion in which hosiery stands with the other enumerated articles, the natural construction of it would certainly be, that it was restricted to hosiery, ejusdem generis, that is to say, hosiery of wool, or of which wool was a component part. It stands in connexion with mits, gloves, binding, blankets, and carpeting, and the exceptions carved out of it are all articles composed of wool, viz. certain kinds of carpetings and blankets. It is followed by flannels, bockings, and baizes, coach laces, and merino shawls, and then come the sweeping words, 'all other manufactures of wool, or of which wool is a component part;' which certainly seem to presuppose that all the preceding enumerated articles were of a kindred nature and fabric. The words 'ready made clothing,' follow this enumeration, and, therefore, are not necessarily governed by the same interpretation since they are not inserted as a qualification of the sweeping words already referred to, but stand as an independent descriptive specification, capable of being applied to every variety or ready made clothing, whatever may be the fabric. No argument, therefore, can properly be derived from this part of the clause respecting ready made clothing, to control the natural deductions arising from the antecedent language of the same clause.
But the case before us does not turn upon the interpretation of the second clause standing alone, but it is materially affected by the fifteenth clause of the same section of the act, which prescribes a rate of duty on manufactures of silk, in the following words: 'On all manufactures of silk or of which silk shall be a component part, coming from beyond the Cape of Good Hope, ten per centum ad valorem, and on all other manufactures of silk, or of which silk is a component part, five per centum ad valorem, except sewing silk, which shall be forty per centum ad valorem.' Now, this language in its positive import, includes all manufactures of silk except sewing silk; and the very exception of sewing silk, lends additional force to the conclusion, that no other manufactures of silk were intended to be excepted from the operation of the clause, upon the well known maxim, that an exception in a statute amounts to an affirmation of the application of its provisions to all other cases not excepted. Upon what ground, then, can this Court say, that silk hose, being a manufacture of silk, is not solely and exclusively liable to the duty imposed by the fifteenth clause of the section? Upon none, unless it manifestly appears to be repugnant to some other provision of the statute. No such repugnancy exists if we construe the word 'hosiery,' in the second clause of the second section to mean, as in its natural connexion it imports, hosiery of Wool, or of which wool is a component part. On the other hand, if we construe 'hosiery' in this connexion, to include silk hose, then all other manufactures of silk, except sewing silk, are not governed by the fifteenth clause; and thus we create a positive repugnancy between the second and fifteenth clauses. Now, it is the duty of Courts of Justice so to construe all statutes as to give full effect to all the words in their ordinary sense, if this can be properly done; and thus to preserve the harmony of all the provisions. And besides, if we are to create an implied exception as to hosiery, the same rule might be applied to silk mits, silk gloves, and silk bindings; and if there are such articles, to carpetings of silk. Indeed, there would be no end to implied exceptions. If the legislature meant specially to except silk hose, or any other particular manufactures of silk from the general language, the natural course would have been to have placed them as exceptions with sewing silk; and the omission is, in our judgment, conclusive to show that none others were intended.
If we look back to the duty act of the 19th of May, 1828, ch. 55, which the act of 1832 was designed in a great measure to modify or supersede, and in which, for the first time in our legislature, 'hosiery' is mentioned, eo nomine; there cannot be a doubt that the legislative intention, then, was confined to woollen hosiery. The second clause of the second section of that act is in the following words: 'On manufactures of wool, or of which wool shall be a component part, except carpeting, blankets, worsted stuff goods, bombazines, hosiery, mits, gloves, caps, and bindings, the actual value of which at the place whence imported shall not exceed fifty cents the square yard, shall be deemed to have cost fifty cents the square yard, and be charged with a duty of forty per centum ad valorem, &c., &c.' The third, fourth, fifth, and sixth clauses of the same section lay a particular duty on other manufactures of wool, 'except as aforesaid;' and then the seventh, taking up the exception, says, 'on woollen blankets, hosiery, mits, gloves, and bindings, twenty-five per cent. ad valorem. On clothing ready made, fifty per centum ad valorem.' It is impossible, reading these clauses in connexion, not to perceive that the exceptions in the second clause, are wholly of fabrics of wool, or of which wool is a compenent material; for every exception must be considered in such a case to be of something ejusdem generis. Then follows in the sixth clause, 'On all manufactures of silk, or of which silk is the component material, coming from beyond the Cape of Good Hope, a duty of twenty per centum ad valorem, &c.; and on all other manufactures of silk, or of which silk shall be a component material, twenty per centum, ad valorem.' Construing, then, these acts as being in pari materia, if we were at liberty to look beyond the act of 1832, to the antecedent state of the law on this subject, the duty on hosiery, as such, was confined to hosiery of wool, or of which wool is a component part.
But if any doubt could be entertained upon the act of 1832, ch. 224, interpreted by itself, or by the antecedent laws, we think none whatsoever can be entertained as to the true intendment and operation of the act of 2d of March, 1833, ch. 354. That act in the fourth section, expressly enacts, that in addition to the articles then exempted from duty by the act of 1832, and other existing from from the payment of duties, the following articles, imported from and after the 31st of December, 1833, and until the 30th of June, 1842, shall also be admitted free from duty; 'to wit, bleached and unbleached linens, table linen, linen napkins, and linen cambrics, and worsted stuff goods, shawls, and other manufactures of silk and worsted, manufactures of silk, or of which silk shall be the component material of chief value, coming from this side of the Cape of Good Hope, except sewing silk.' This section, in express terms, declares that manufactures of silk coming from this side of the Cape of Good Hope, (which is the very predicament of the silk hose in question,) except sewing silk, shall be free from duty. And it would violate every rule of interpretation to hold, that where the legislature had declared all manufactures of silk, except one, free from duty, the Court should create other exceptions by its own authority, without any express or implied intent on the part of the legislature, manifested in the context to warrant such exceptions.
Upon the whole, we are of opinion, first, that upon the facts stated, the present action is not maintainable: and, secondly, that silk hose is free of duty under the act of 1833. A certificate will be sent to the Circuit Court, accordingly.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the southern district of New York; and on the points and questions on which the judges of the said Court were opposed in opinion, and which were certified to this Court for its opinion, agreeably to the act of Congress in such case made and provided; and was argued by counsel. On consideration whereof, it is the opinion of this Court, First, that upon the facts stated in the case, the plaintiff, Bend, is not entitled to recover back the excess of duties paid by him on the package number 45, as mentioned in the case. And, Secondly, that silk hose is entitled to be admitted to entry free of duty, under the act of the 2d of March, 1833, entitled, 'An act to modify the act of the 14th of July, 1832, and all other acts imposing duties on imports;' which declares that all manufactures of silk, or of which silk is the component material of chief value, coming from this side of the Cape of Good Hope, except sewing silk, shall be free of duty. Whereupon it is ordered and adjudged by this Court, that it be so certified to the said Circuit Court; and that this cause be remanded to the said Court, that further proceedings may be had therein according to law.

## Notes

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