The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-11-28


~ wrn,Loso ana others os. Hugh kd1toen, and
sf,t,no Other cases against different Collectors or
fAs Port Of Neo York. 10 recover back excess or du-
nes-These cases before referee for adjustment
n the amount OF moneys paid In each case and
claimed as excess OF the legal rates OF duty. Mr..
SIMON Towie, who appears for the government,
moves tho records Of the Court and several ada-
Wits, to amend order entered by Judge smaley in
these cases 2Sth March, 1857 so as TO require the
plaintiffs TO produce and prove before tho referee
the protests made and presented to the Collector or
annexed to the entries In each ct the time be-
Sore the duties were paid; and that the verdict
entered by consent, as appears nom the records.
ANAL not be regarded a. conclusive that such pro-
tasta had been exhibited to the Court in the
several cases and approved by the same. The mo-
tton Is opposed by Mr.. Griswold, who appears for
ahe plaintifYs 1t appears from the records OF the
Court that, in each OF the cases, with some three
exceptions, the verdicts were taken by consent Of
ehe District Attorney, appearing for the collectors,
and Of the attorney or counsel for the plaintins.
without any evidence taken In the cases before the
nent OF the Court In respect to them. The reason
assigned In the afidavts OF the respective parties
soa tns N Respect t1ed y ,a mo
Tor instance in the cases for charges OF internal or
coastwise transportation, as an item 70 De added
ton, or as 10 the rule OF commissions In different
countries had settled rate OF construction
shat II would be Q useless consumption OF time and
expense to enter on the formal trial OF each case,
as IL undoubtedly would have been; and II the diff
Scrent ships and entries Of the same had been speci
ned In each OF these special verdics and that pro-
tests had been duly made In each case when the
duties were paid the proceedings would have been
unobjectionable, and the business Of the Collector,
clerk referee in the several cases would have been
simple and a matter OF arithmetic. But, instead OF
this precision, the verdcts have been entered in the
most general and indefinite form, leaving 1t open
70 doubt whether or not the District Attorney in
"a IN
particular shipments or entries; and now dispute
arises before the referee upon this question,
the attorney OF the government insisting thar the
plaintiffs are bound TO produce and prove the pro-
Tests before the referee, and the attorney for the
plaintiffs that they must be taken as proved and in
tins OF the question had to conflicting
Adndavs, the District Attorney Affirming that 1t was
the entry Of these verdicts that the plaintiffs were
20 produce and prove the protests before the adjust
ing officer and that he was TO pass on their suti
cheney subject TO any objection taken to Them This
y denied by the attorney for the plaintiffs. As the
imperfect and indefinite form OF the verdlcts leaves
the question in doubt and matter OF construction on
she record, in view OF these afildavs, for the
protection OF the rights OF the parties, as well as In
iurherance Of justice, we shall direct that the plain
tins in each OF the thlrty-three In the list be-
fore us, shall produce and prove the protests cover
Ing the entries in each OF the cases the il
they were being tried regularly before the Court and
n objection be taken to their sufrclency that the
referee note and report the same to the Court either
during the progress OF the adjustment the final
report We come TO this conclusion the more readily
vs. can see from the general terms OF the verdict and
imperfect manner OF Its entry-lt may be true that
these protests in most II not all the cases. may not
have been passed upon by the Court, or, at most,
could only have been admitted as sufficient by the
District Attorney III giving his consent to the ver
dict, and which he denies In his afidavif. This de-
cision may be taken by referee as applicable not only
70 the III the list before u.s. but In all
similarly situated. Until this system OF consent
diets came into practice the heard by the
Court which examined and passed upon the pro-
tests, and the reference was simply to make the ad
tustment In figures on the principle decided In the
Case The consent yerdcts cannot be admitted 10 |
have the effect OF deprvng the government OF the
right to have the judgment OF the Court where any
question made in respect to them, either IN ad-
vance or ultimately, when the report comes in. We |
Obserye from the papers before IL Is claimed that
have heretofore decided that prospective pro- |
tests are sufficient, even as 1t respects collector
succeeding the one TO whom the protest was pre-
Aented. We have no recollection OF such decision
and do not believe the record OF any such VIII be
found. In the case OF Fowler and others Vs. Red
the exceptions taken was that the prospective pro-
test not sufficiently explicit and direct within
the act OF Congress- That decision was placed on
the ruling OF the late Chief Justice at the Circuit
which affirmed by the Supreme Court, In the
case, think, OF Marriott VS.. Brune How, .. u
which case reference was made. We did not in
tend to go beyond that and our Impression Is,
though we have looked at the case lately. that
tbe prospective protest there was applied TO an entry
made during the time OF the Collector to whom IL
had been presented, giving him notice that they
should claim all OF duties thereafter paid on
the article OF merchandise. We can readily see
that the application Of such protests To- succeeding
collector who cannot be presumed TO nave informa-
ton OF the protest. might lead TO embarrassment
and evasion OF the intention and purpose OF the sta
tute The counsel may draw up rule la conformity
~ this opinion.