# Bend v. Hoyt

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## Dissenting Opinion

    Thompson
United States Supreme Court
38 U.S. 263
Bend v. Hoyt
ON a certificate of division of opinion from Circuit Court of the United States, for the southern district of New York.
This suit was originally instituted in the Superior Court of New York, and was afterwards brought before the Circuit Court of the southern district of New York, by a certiorari. An action of assumpsit was instituted against the collector of the port of New York, to recover the sum of one hundred and twenty-seven dollars, paid to him by the plaintiff, for the importation of silk hose. The duty was levied at the rate of twenty-five per centum ad valorem, 'as hosiery,' under the second article of the second section of the act of Congress of 14th July, 1832, entitled 'an act to alter and amend the several acts imposing duties on imports.'
Upon the trial it was proved, that on the 29th of March, 1837, the plaintiff made an entry at the customhouse in New York, of eight cases of cotton gloves, and that the duty was levied on each of the eight packages of twenty-five per centum ad valorem; for which duty, with the duties on other goods, the plaintiff gave a bond for two hundred and ninety-four dollars, payable on the 27th June, 1838.
The plaintiff on making the entry, made the usual affidavit to the truth of the invoice and bill of lading produced by him, and that the invoice produced by him was the true invoice of the cost of the goods, and that if any error was discerned in the invoice or cost of the goods, he would immediately make the same known to the collector.
It was proved, that the the year 1838, it was discovered that case No. 45, one of the packages in the invoice, did not contain cotton gloves, but actually contained silk hose, and that one hundred and twenty-seven dollars and ninety-two cents, were bonded by the plaintiff, under the belief that the case contained cotton gloves. On the 28th June, 1838, the plaintiff served a protest on the collector, against the payment of the bond given to secure the duties. The protest stated, that the bond had been given under a clear misapprehension of the nature of the goods, and claimed a deduction from the bond of the amount of the estimated duties on box No. 45, supposing the box to contain cotton gloves.
The plaintiff had previously requested the comptroller of the treasury to release him from the payment of the duties; and the comptroller in reply, refused to correct 'errors in fact.'
On the trial of the cause, the collector introduced and read to the jury, to show the habitually loose manner in which the plaintiff transacted his business, an affidavit made by the plaintiff on the 25th of April, 1838.
The affidavit stated, 'that on the 27th day of March, 1837, he imported in the ship Roscoe, from Liverpool, eight cases and casks of hosiery and gloves, marked B 38 to 45, owned by Barker and Adams, manufacturers of Nottingham, England, and consigned by them to him, the said William B. Bend, for sale; that his clerk not being able to ascertain from the wording of the invoice, which packages contained gloves, and which hosiery, and knowing that cotton gloves and cotton hosiery paid the same duty, he entered them all upon arrival at the customhouse, in the port of New York, as cotton gloves; that a duty of twenty-five per centum was charged upon them by the collector of the said port, and that he, the said Bend, gave bonds to the said collector, to pay the said duties; that on examination of the goods contained in one of the aforesaid cases, marked B 45, he found them to be spun silk hoisery, and not cotton gloves, as entered by him at the customhouse; and furthermore, that the goods are called, upon the original invoice, passed at the customhouse, 'spun knots;' a term which is well known in the trade to be applied to hosiery of silk only: and that he verily believes the error of entering the said case, and paying duty, arose from the ignorance of his clerk who made the entry; that he, the said Bend, did not upon this, nor does he upon any occasion, examine whether the customhouse entries, made by the said clerk, are correct. And the said William B. Bend, further maketh oath, that he has never sold any part of the said case, B 45, and that, to the best of his knowledge and belief, nothing has been ever taken from or added to it, but that it is in every respect in the same condition as it was when he received it.'
It was also proved, that the package No. 45, was never in the custody of the collector, nor subjected to the examination of the public appraisers; and that the first intimation the collector had that it contained silk, was in March or April, 1838.
It was also proved, that the merchandise contained in the package No. 45, was silk hose, made of the tow of silk, a coarse quality of silk, but still silk, sometimes called sponged silk; and that the said merchandise was well known, in commerce, under the denomination of hosiery.
Upon the foregoing evidence, given during the progress of the trial, the following points were presented on the part of 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, No. 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 the duty imposed on 'hoisery' by the second clause of the second section of the act of July 14th, 1832, 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 goods, wares, and merchandise, contained in said package, No. 45, were exempted from the payment of duty by the fourth section of the act of March 2d, 1833, entitled 'an act to modify the act of the fourteenth of July, one thousand eight hundred and thirty-two, 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?
Which said points, upon which the disagreement happened, are stated under the direction of the judges of the said Court, at the request of the counsel for the parties in the cause, and ordered to be certified unto the Supreme Court of the United States, at the next session.
The case was argued by Mr. Raymond and Coxe, for the plaintiff; and by Mr. Grundy, the Attorney General of the United States, for the defendant.
Mr. Justice STORY delivered the opinion of the Court.--

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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