that the person having custody of the article at the port at the time of shipping, being the only person who can ship it, should see to its entry ..on the outward: manifest; especially in cases where the article to be exported is manufactured at a place other than the port of shipment, and is forwarded to the port for the purpose under permit and regulations of the treasury department. The tobacco which is the origin of this suit having been manufactured in Richmond, was forwarded hence to the collector of customs in New York, who, after receiving it there, duly certified that it had been received by himself. It was in his custody from the time it landed in New York. It was constructively in his custody as consignee from the time it left Richmond. It was not only custodia legis during this time and until it was cleared on board the foreign-bound ship at New York, but in that city it was in the actual custody of the collector of the port. In his certificate of the 17th day of September, 1887, this officer recites "that there was received by me at this port" tobacco, etc., marked, etc.; "that the said merchandise was duly inspected and marked at this port, and laden on board the foreign-bound steamer Waesland, under supervision of a proper officer; and that said vessel and cargo were duly cleared from this port for the port of Antwerp on the 6th September, 1887." Every person familiar with the business of shipping merchandise would say that the custodian at the shipping port of the article intended to be shipped, having custody until the article is put aboard and entered as part of the cargo of the ship which is to carry it away, is the only person who can rightfully and regularly have it entered on the ship's manifest, and attend to the proper details of the shipment; and when the collector of the port of New York certified that the tobacco of defendants had been received by him, had been properly inspected and marked and laden, and duly cleared upon the Waesland, the owner of the article in Richmond had a right to presume that the article had, in order to its due clearance, been entered on the ship's outward manifest, the more especially as the act of June 9, 1880, is silent as to who should perform that duty. It is true that in the New York collector's certificate, which has been quoted from, made on a printed form supplied by the treasury department, he omitted to certify particularly that the tobacco had been entered on the outward manifest of the Waesland. In point of fact he drew his pen through the line of the form expressing that fact. It is true that the defendants became aware of that omission when the certificate came to be read by them after its arrival in Richmond in due course of mail. But the Waesland had been cleared from New York on the 6th September, and the certificate was not signed, by the collector of New York until the 17th of that month, 11 days after the clearance and after the Waesland had been out at sea. The defendants then had no power to correct an omission for which they were not responsible, and which seems to me resulted from the oversight of the plaintiffs' own officer. This is an action at law, and but for the stipulation of counsel, by which all questions of fact as well as law were submitted to the court, the issue of fact would have gone to a jury. I am very certain that no jury of the land would find for the plaintiffs on the facts in this case; and, even if such a verdict were possible, I am decidedly of opinion that the plaintiffs ought not to recover on the merits. I was first inclined to think that there had been a technical breach of the bond, for which merely nominal damages should be accorded, but subsequent reflection satisfies me that the defendants have substantially complied with the law, and judgment must be rendered in their favor. SLAIGHT v. HEDDEN. (Circuit Court, E. D. New York. November 14, 1888.) CUSTOMS DUTIES-RIGHTS OF IMPORTERS - EXCLUDING AGENT FROM PUBLIC STORES. Though the owner or importer of cigars from a foreign country may by his agent lawfully affix and cancel the internal revenue stamps required by section 3402 of the Revised Statutes to be affixed and canceled while such cigars are in the custody of the proper custom-house officers, yet the collector of the port may in the exercise of a sound discretion exclude such an agent from resorting to the public stores for that purpose; and, in the absence of legislation by congress or regulation by the treasury department, no action accrues thereby to the agent thus excluded. At Law. On motion to dismiss. This was an action against Edward L. Hedden, formerly the collector of the port of New York, to recover damages for having as such collector excluded the plaintiff from the public stores, which the plaintiff sought to enter for the purpose of affixing and canceling internal revenue stamps upon certain cigars imported from a foreign country by certain importers who had employed the plaintiff to affix and cancel such stamps. The plaintiff alleged that on or about July 1, 1885, he was employed for the term of four years by certain importers of cigars to aflix and cancel the internal revenue stamps required by law to be affixed and canceled on all cigars, etc., which might be imported by them, or any of them, during the four following years, for which service the said importers had promised to pay the plaintiff 20 cents for every thousand cigars imported by them, and stamped and canceled by the plaintiff, and that such employment was worth to the plaintiff $6,000 per year; and that on May 1, 1886, the defendant, then being collector of the port of New York, willfully and maliciously, with intent to injure the plaintiff, and to deprive him of the benefits arising from said contract, refused to allow him access to the cigars imported by his employers, or to enter the room of the public stores where the said cigars were for the purpose of having said stamps affixed and canceled, and hindered the plaintiff from carrying out his contract with his said employers, to the plaintiff's damage in the sum of $24,000. The defendant denied these allegations. It appeared that during the incumbency of a former collector a regulation had been adopted requiring that when owners or importers desired to have the internal revenue stamps required by law affixed and canceled upon cigars imported by them while such cigars remained in the public stores such agent must be a person approved of by the collector, and that no more than one such agent would be permitted to resort to the public stores. After the controversy herein arose, the secretary of the treasury abrogated this regulation, and communicated that fact to the defendant by letter dated July 13, 1886. At the close of the plaintiff's case, the defendant's attorney moved for a dismissal, and the direction of a verdict for defendant. Benjamin F. Tracy, for plaintiff. Mark D. Wilber, U. S. Atty., for defendant. LACOMBE, J., (after stating the facts as above.) This case naturally divides into two periods,-the one prior, the other subsequent, to the departmental letter of July 13, 1886. Under section 3402 of the Revised Statutes it is plain that the importers had the right, and that it was their duty, to affix the stamps to these boxes of cigars, tobacco, and snuff. All that the statute expressly conceded to the importer was the right himself to attend and affix the stamps. It may be contended that he should be allowed to perform acts of this kind by an agent. Conceding that, however, it seems to be also a fair interpretation of this section (in connection with the other sections creating the office of collector) to construe it as warranting the adoption of such reasonable regulations touching the admission of agents to the premises of the custom-house as the collector may see fit to approve of. Now, it seems to me an entirely reasonable regulation of that character for any collector to say, where the importer or owner does not choose himself to come and stamp his own goods, but selects an agent, that the agent thus selected must be one who is satisfactory both to the collector and to the importer. Such appears to have been the regulation of the collectors at this port prior to Collector Hedden's appearance on the scene, because we find that Mr. Slaight had an express permit from the preceding collector, and we may reasonably infer that without such permit he would not have been allowed admission to the room. Collector Hedden certainly adopted the rule that, where importers undertake to affix these stamps by agents, the agents thus admitted to the public stores should be satisfactory to him as well as to the importer or owner. In the absence of express legislation on the subject, either by congress or his superior officer, that seems to have been a perfectly reasonable regulation, and one which it was within the collector's power to make. On July 13, 1886, however, the matter being called to the attention of the secretary of the treasury, this letter (of July 13, 1886) was sent. Conceding that the rule laid down in that letter worked practically a repeal of the regulation theretofore prescribed by the collector of the port, and put the case upon a different footing, there are still difficulties in the way of the plaintiff's recovery, which I do not think he has as yet overcome. In the first place, it may be a matter of question (which I shall not undertake to pass upon now) as to whether any one other than the owner or importer himself would be entitled to sue the collector for the exclusion from the custom-house of the agent he sent there. Waiving that question altogether, it appears by the evidence that subsequent to the revocation of his permit, a change occurred touching the employment of Col. Slaight. Some who prior to that time were his employers, and whose names were signed to the paper, which certified his agency to the collector, had since that time discontinued the employment. Now, despite the regulation or the order of the secretary of the treasury, Mr., Hedden was still entitled to be satisfied that Mr. Slaight, at the time of the subsequent application, did have an authorization to act for them from one or more importers, and, as it is conceded that the old authorization was defective in part, it was right and proper that he should do what his counsel undertook to do,-procure a new authorization, and present that. The earliest period at which that seems to have been presented to the collector-assuming that the transmission of it by the letter of July 22d was a sufficient presentation-was July 22d. That reduces the period for recovery-assuming there can be a recovery—to that subsequent to July 22d. For that period there is no proof of damages. All that there is here is a statement of the plaintiff that his compensation was proportioned to the total quantities of importations, the total number of packages, or the total number of stamps. The statute shows us the number of stamps which should be put on each package. We have further testimony that between May 1, 1886, and May 1, 1888, such and so many stamps were affixed. There is no such segregation of the period as will show the number of stamps used or affixed between July 22d, or even July 13th, and the date of Collector Hedden's retirement. In view of the fact that it is in evidence on the plaintiff's own testimony that not all the importers of cigars and tobacco into this port were employing him subsequent to the letter of July 13, 1886, I fail to see that he has made proof sufficient to claim any damages. The motion of the defendant for a dismissal of the case, and the directing of a verdict for the defendant without putting in any proof, is granted. Plaintiff excepts. REISS et al. v. Magone. (Circuit Court, S. D. New York. May 21, 1889.) 1. CUSTOMS DUTIES-ASSESSMENT-QUANTITY. Duties are to be paid only upon the actual quantity of merchandise which 18 imported into this country and enters into its commerce, and not upon the original quantity thereof bought and shipped. 2. SAME INCREASED VALUE BY SHRINKAGE. Where, however, an importation has shrunk in weight from evaporation or other like cause, and such shrinkage has added a percentage of value, so that the actual quantity thereof which arrives is in its then condition worth more per pound in the markets of the country from which it came than the orig. inal quantity thereof bought and shipped was worth per pound, the actual quantity should in fairness be appraised at its increased value per pound, and duty assessed upon the value thereof so appraised, although the invoice describes the original quantity as worth less per pound. 8. SAME. But, to warrant such an assessment of duty, the appraiser must first find that the actual quantity was worth per pound such a sum as would warrant the particular amount of duties assessed. Since the passage of the tariff act of March 3, 1883, fish caught in foreign waters, salted or pickled, and imported in ankers which have each a capacity of about 80 pounds or less, and not in barrels or half barrels, which have each a capacity, respectively, of about 200 and 100 pounds, which were generally bought and sold by the trade of this country dealing therein at and prior to March 3, 1883, under the denomination of "anchovies" or "sardines, are dutiable at the rate of 40 per centum ad valorem under the provision for "anchovies and sardines, when imported in any other form" than packed in oil or otherwise in tin boxes, contained in Schedule G of that act; but those that were then generally bought and sold by that trade under the denomination of "sardelles" are dutiable at 50 cents per hundred pounds under the provi sion for "foreign-caught fish, imported otherwise than in barrels or half barrels, whether * * * salted or pickled, not specially enumerated or provided for in this act," contained in the same schedule. At Law. The plaintiffs in 1886 imported from Amsterdam and Rotterdam certain fish, and in 1887 from Marseilles certain Castile-soap. The Castilesoap as invoiced was classified for duty at the rate of 20 per centum ad valorem under the provision for Castile-soap contained in Schedule A of the tariff act of March 3, 1883, (Heyl, New, 8.) Against the exaction of duty upon the Castile-soap as invoiced, the plaintiff's duly protested; claiming that duty should only be exacted thereon after making deduction or allowance for shortage of weight. The fish were invoiced as "sardelle," and were classified for duty at the rate of 40 per centum ad valorem as "anchovies," under the provision for "anchovies and sardines," "when imported in any other form" than packed in oil or otherwise, in tin boxes, etc., contained in Schedule G of the same tariff act, (Heyl, New, 281.) Against the classification of these fish as anchovies, and the exaction of duty thereon at the rate of 40 per centum ad valorem, the plaintiffs duly protested; claiming that these fish were dutiable at the rate of 50 cents per 100 pounds as "foreign-caught fish, imported otherwise than in barrels or half barrels, whether * salted or pickled, not specially enumerated or provided for in this act," under the provision therefor contained in the same schedule, (Heyl, New, 280.) Thereafter the plaintiffs duly appealed, and brought suit to recover the duty exacted on the difference betweeen the invoice quantity of the Castilesoap and the actual quantity thereof as landed, and on the difference between the duty at the rate of 40 per centum ad valorem exacted on the fish and duty at the rate of 50 cents per 100 pounds as claimed by them. Upon the trial it appeared that the Castile-soap on the voyage of its importation from Marseilles to this country had shrunk in weight, by evaporation or other like cause, so that the actual quantity thereof landed, as returned by the government weigher, was less than the purchased quantity as invoiced and shipped at Marseilles; but that the appraiser had taken the value per pound at its invoice value, and that duty had been * * |