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Ex parte Dorr.

As this case cannot be brought under the head of original jurisdiction; if sustainable, it must be under the appellate power.

The 14th section of the Judiciary Act of 1789, provides : " That the courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And that either of the justices of the supreme court, as well as * judges of the district courts, shall have power [ * 105 ] to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment. Provided that writs of habeas corpus shall in no case extend to prisoners in jail, unless where they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify."

In the trial of Dorr, it was insisted that the law of the State under which he was prosecuted, was repugnant to the constitution of the United States. And on this ground a writ of error is desired, under the 25th section of the Judiciary Act above named. That as the prayer for this writ can only be made by Dorr or by some one under his authority, and as access to him in prison is denied, it is insisted that the writ to bring him before the court is the only means through which this court can exercise jurisdiction in his case by a writ of

Even if this were admitted, yet the question recurs, whether this court has power to issue the writ to bring him before it. That it has no such power under the common law is clear. . And it is equally clear that the power nowhere exists, unless it be found in the 14th section above cited.

The power given to the courts, in this section, to issue writs of scire facias, habeas corpus, &c., as regards the writ of habeas corpus, is restricted by the proviso to cases where a prisoner is “in custody under or by color of the authority of the United States, or has been committed for trial before some court of the same, or is necessary to be brought into court to testify.” This is so clear, from the language of the section, that any illustration of it would seem to be unnecessary. The words of the proviso are unambiguous. They admit of but one construction. And that they qualify and restrict the preceding provisions of the section, is indisputable.

Neither this nor any other court of the United States, or judge thereof, can issue a habeas corpus to bring up a prisoner, who is in custody under a sentence or execution of a state court, for any other

error.

11 Stats. at Large, 81.

Curtis v. Martin. 3 H.

purpose than to be used as a witness. And it is immaterial whether the imprisonment be under civil or criminal process. As the law now stands, an individual, who may be indicted in a circuit court for treason against the United States, is beyond the power of federal courts and judges, if he be in custody under the authority of a State.

Dorr is in confinement under the sentence of the supreme court of Rhode Island, consequently this court has no power to issue a habeas corpus to bring him before it. His presence here is not required as a witness, but to signify to the court whether he desires a writ of error to bring before this tribunal the record of his conviction. The counsel in this application prays for a writ of error, but as it

appears from his own admission that he does not act under [ * 106 ] the * authority of Dorr, but at the request of his friends,

the prayer cannot be granted. In this view it is unnecessary to decide whether the counsel has stated a case, which, with the authority of his client, entitles him to a writ of error. The motion for a habeas corpus is overruled.

3 H. 292; 5 H. 176; 14 H. 103.

3h 106 4h 334 Th 797 1 363 3 470 6 111

EDWARD Curtis, Plaintiff in Error, v. William Martin and CHARLES

A. CoE, Defendants.

3 H. 106. A duty on "cotton bagging" can be levied only on articles known as such in commerce,

when the act imposing the duty was passed.

11 507

The case is stated in the opinion of the court.

Lord, for the defendant.

No counsel contrà.

[ * 108 ] * Taney, C. J., delivered the opinion of the court.

This case comes before the court upon a writ of error directed to the circuit court for the southern district of New York. The action was brought by the defendants in error against the plaintiff, who was the collector of the port of New York, to recover back $4,500, which had been paid, under protest, as duties upon certain goods imported into the port of New York, in April, 1841. The goods in question were gunny cloths, and were charged by the collector as cotton bagging.

The defendants in error offered evidence to show that, in 1832,

1 4 Stats. at Large, 583.

Curtis v. Martin. 3 H.

when the law passed imposing the duty on cotton bagging, the article in question was not used or known as cotton bagging; that it was then only seen in the form of bags for India goods; that the first importation of gunny cloth, to be used as cotton bagging, was in 1834. It is made from the yute grass.

The plaintiff in error proved that these goods, at the time of the * importation, were known in commerce as cotton [ * 109 ] bagging; that they were made of the proper width for that purpose, and for several years before this importation, gunny cloths had been imported and used for cotton bagging; and that the goods in question were imported from Dundee, in Scotland.

Upon this evidence, the counsel for the defendant contended that if the jury found that the article gunny cloth was, in commercial understanding, known as cotton bagging at the time of its importation, it was subject to a duty; and that the term cotton bagging, according to the commercial understanding of the phrase, signified any fabric, without regard to the material of which it was made, that was used to bale or cover cotton, and prayed the court so to charge the jury.

His honor the judge refused so to charge the jury; but, on the contrary thereof, charged that the point upon which this case turns is for the decision of the jury, namely: whether the article in question in this case was known as cotton bagging in the year 1832, when the Tariff Act was passed. It has long been a settled rule of construction of revenue laws, imposing duties on articles of a specified denomination, to construe the article according to the designation of such article, as understood and known in commerce, and not with reference to the materials of which they may be made, or the use to which they might be applied. Nor ought such laws to be construed as embracing all articles which might subsequently be applied to the same use and purpose as the specific article. If it had been the intention of congress to impose the duty upon all articles used for bagging cotton, the language of the act would have been different, and in terms prospective, adapted to such purpose. It has been argued, on the part of the United States, that the duty was intended to be laid on all articles used for bagging cotton, because the duty is laid on cotton bagging “without regard to weight or measure." These terms, “ weight or measure,” were intended to apply to different materials then in use for bagging cotton, such as hemp, flax, and sometimes cotton cloth, &c., and not to any new articles that might thereafter be applied to that use. So that the whole question of fact for the jury is whether gunny cloth was, in commercial understanding, known as cotton bagging when the law was passed laying

Swartwout v. Gihon. 3 H.

the duty, in 1832? If it was not, they will find for the plaintiffs; if it was, they will find for the defendant.

To this charge, in every respect, the defendant's counsel excepted.

The jury found a verdict for the plaintiffs for $4,543.17, and six cents costs.

The question brought up by this exception cannot now be considered as an open one. In the case of The United States v. 200 Chests of Tea, 9 Wheat. 438, the court decided that in imposing duties congress must be understood as describing the article upon which the duty is imposed according to the commercial understanding of

the terms used in the law, in our own markets. This doc[ * 110 ] trine * was reaffirmed in the case of The United States v.

112 Casks of Sugar, 8 Pet. 277, and again in 10 Pet. 151, in the case of Elliot v. Swartwout. It follows that the duty upon cotton bagging must be considered as imposed upon those articles only which were known and understood as such in commerce in the year 1832, when the law was passed imposing the duty.

In the case before us, the circuit court followed the rule of construction above stated, and it has been followed also in every circuit where the question has arisen. The judgment is therefore affirmed.

4 H. 327; 7 H. 785.

3h 110 4n 332 181 892

Samuel Swartwout, Plaintiff in Error, v. John Gihon et al.

3 H. 110.

A verbal protest against the illegal exaction of duties is sufficient.

The case is stated in the opinion of the court.

TANEY, C. J., delivered the opinion of the court.

This case comes before the court upon a writ of error directed to the circuit court for the southern district of New York. The action was brought by the defendants in error against the plaintiff to recover back certain sums of money paid to him as duties on brown linens, imported into New York in 1836, of which port he was at that time the collector. Some of these duties were paid under protest in writing, and some without any written protest or notice, but evidence was offered for the purpose of showing that the defendants in error verbally notified the collector that the duties charged on all of these

i Contrà, the act of February 26, 1845, (5 Stats. at Large, 727.)

Savage's Assignee v. Best. 3 H.

goods would be contested. The goods in question were unbleached linens, and had been charged with duty as coloured; and the jury found a verdict against the collector for the amount claimed.

At the trial, the court instructed the jury that a written notice of the objections to pay the duties was not necessary, and that it was sufficient if a verbal notice was brought home to the collector; but that the jury must be satisfied that such notice was brought home to him. To this direction the plaintiff in error excepted; and it is upon this point only that the case comes before this court.

The only object of the notice was to warn the collector that the party meant to hold him personally responsible for the money, whether he paid it over or not. It was a question for the jury to decide whether notice was or was not given; and it could make no difference, for the purposes for which it was required, whether it was written or verbal. We think the charge of the court was clearly right, and the judgment is therefore affirmed.

4 H. 327.

LESSEE of Henry Waller, Assignee of the Bankrupt Estate of FRANCIS A. SAVAGE, Plaintiff, v. James and JOSEPH BEST.

3 H. 111. In Kentucky, the delivery of a fi. fa. to the sheriff, creates a lien on the debtor's lands, which

is as valid before as after a levy.

The case is stated in the opinion of the court.

Morehead and B. Monroe, for the plaintiff.

R. French, contrà.

* Taney, C. J., delivered the opinion of the court. [*118 ]

This case comes before the court upon a certificate of division between the judges of the circuit court of the United States for the district of Kentucky, upon the following statement:

Savage had the title to the land; the plaintiff claimed under the decree of his bankruptcy; the defendant, under a sheriff's sale under an execution.

" The act of bankruptcy of Savage was committed on the 27th April, 1842; the petition of his creditors was filed against him in the district court on the 25th day of June, 1842, and he was declared a bankrupt on the 26th October, 1842; the plaintiff was appointed the assignee, and this is his title. “ An execution of fieri facias on a judgment against the estate of

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VOL. XV.

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