The New York herald., 1863-11-14

ners. and q their wort t6e duty { ava socsss.
from the papers and wss affirmed By wilaea fton Che
ouseoms u this case that the duty not Qudated or
ansd tl The Let ID 4 August and was thsn reduced
TO- the duty on nearly moiey Of the goods having
and may add Is confirmation Of the view' that the
duty not aEed at the time Of the warehouse entry the
payment duties "o BE- a. due" We are
satisfied upon uc construction Of this 6h section OF
the ect OF 1857 that the entry rsorred TO- and from
which the ten days 10 date, the Withdrawal entry
which, according 10 the fourth section Of the act Of 1854
Is TO bo made and the duties TO be paid ~ the time
and this only point made against the recovery
the plaintiff Is entitled TO Judgment FOR the $l6l 93 the
James Napier q al. w H;raw Barney.-Nelson, c. j.
This suit brought TO back an alleged excess OF
duties eKacted on Ave thousand bags OF sugar
December, 1861 The duties exaced two cents per
pound by weight under the act I'd March, 1861 There
charged according TO weight The dispute arises out Of
the allowances deductions to be made to the merchant
weight Tho fty eighth section OF tho act Of I'd March,
1709. provides that tho following allowances shall be
by weight, for draft on any quantity Of one hundred
weight, or one hundred and twelve pounds. pound
on any quantity above one and and not exceeding ; ain two hun
which Is, " on any quantity above ten aud not
exceeding eighteen hundred weight. pounds; and
quantity above eighteen hundred weight, nine
p0unas" This latter allowance is the maximum. "F0r
tare every whole chest Of bohea ea seventy pounds
and on enumerang half aud quarter chests, and the
deren, kinds OF tea with the quantity 70 DO allowed for
tho tare con sugar other than loaf sugar, in casks
~ % Is
substantially from tho thirty fifth section Of the act OF
4th o. August l7so The tare was allowed in this case
but tho draft refused. Draft aud tare, In commercial
usage, haye separate and distinct meaning
and application Ths former Is an allowance the e
present instance TO insure good weight 70 hi-as de.
fined in some OF the books go small allowance 10 wegha
for a1y loss thai may from the hand
ling OF tho scales in the weighing 90 that when weighed
tho second time tho article would hold out good woght
covering OF the article imported. whether boz,
barre bags bales, mats &c Now the tare in this case
We cannot perceive any distinction between the two
the right the allowance Of the stands cypress
and as explicit on the statute the other Both might
we'll have been denied either. II Is mistake to sup
pose that the allowance for the are covers that OF the
draft for as is seen i is intended TO cover different
the relates 10 tho loss from tho rough outside
ing OF It, Nether Is there anything in the suggestion
made the trial Of inequality In tho weighing Of large
and small packages II they are small, numbers, 70 the
amount fifteen twenty depending on the bulk or
act OF 1Ah July 1852 modified the allowance Of the
the fifty eighth section OF the act Of 1799 and re-
know Of no other way getting rid OF positive
mont and hence must hold the plaintiffs entitled to
recover Judgment for the Pants e. SSs a.
suit is brought to back money paid for half
storage We had occasion heretofore, In tho case Of
irwin ct al sche to look into the question: and came
to the conclusion that the charge wholly with
legal foundation, and arbitrary but we denied
the rgh the plaintiffs recover the ground that
under the circumstances OF the case the payment
voluntary and therefore not the subject OF an action In
tina. the plaintiffs had entered their goods for ware
housing the accustomed way and by the authority OF
the law designating of the authorized warehouses TO
them. They afterwards, and before the removal
of goods changed their minds and applied 10 the Col
ecor to Withdraw the warehouse entry and to get
nit to land them for consumption Under the regulation
OF the Customs this could be done, payment OF half
storage We said in that case ''that tho charge
made for favor granted to the merchant in per
he had entered them for warehousng that, after being
thus entered the Collector might, doubtless have com
peed him to procure his goods in the usual waythrough
the warehouse which would have increased consderl
bly, the expense " II admitted in that case that
there law authorizing the charge Of t storage
and that the Collector might have adopted any other rule
OF compensation that instead OF charging the $95 26 he
might have charged $500 with equal authority But the
merchant preferred paying the charged to the delay
and expense OF following his goods through the
house which he might nave done and hence tho pay
ment was voluntary In the present case the claim OF
house entry made by the plaintiff At ALL The whole
foundation Of the claim s fiction II Is true there ap
s.vesse as warehouse" But know Of law. has
any been referred which authorizes tho Collector TO
warehouse, aud By this con.rivance lay founda.
ton for charges incident to the warenous,ng M
merchant could not have removed his goods 70 ware
house land could the Collector have compelled
hm 70 remove aem on Inc sn .us hc
but few shilngs 70 land the goods on payment OF the
du8s The shows that the note made on the entry
svesse warehouse" " was intended simply request
that the goods might remain in the vessel FOR the pre-.
sent and acceded TO- under the charge Of the
Inspector In point Of fact the goods remained in the
Ss: s:s. ~ III ~ ss s:sSss sIss sSxsa s
lara were charged fcf Ne sxssa srvesS q u spcSor
paid Bal In addition TO this, tea dOiA for half
storage s set against the merchant for keeping the
goods his own vessel. We cannot say the falls
within the principle Of Irwin ct al Schell and must
hold that the plaintiff s entitled to recover Judgment
for plaintiff for dollars. For plaintiff Messrs Web.
ser and Craig for defendant United States DISTRICT At
torney Z. ID. Smith