336
FEDERAL REPORTER.
United States contrary to law. The fact that such merchandise was so imported is not, however, alleged in either the second or third count, as it should be. And it only inferentially or argumentatively appears from the allegation that. the defendants knew that the opium was imported contrary to law. But the fact is directly alleged in the fourth and fifth counts; and is this a sufficient designation or description of the original offense, even in a count for the secondary offense of buying or receiving? In my judgment it is not. The indictment ought to state, as to these offenses, wherein the importation was illegal or contrary to law-whether the opium was smuggled into the United States, or brought here, whether through the custom-house or not, contrary to a statute prohibiting its introduction into the country, or in prohibited packages, or condition; Hitherto, it may be said that the law permitted the importation of opium. without restraint, as to quantity, package, or condition, and therefore an allegation that such an article was imported contrary to Jaw necessarily implied, and must in law be beld and taken to mean, that it was smuggled.,· .1 This conclusion may be within judicial knowledge, but I hardly think it ought to be imputed to that of the in this or any case, or excuse the prosecution from stating, substantially. in what the illegality of the importation in question consists, so that the defendant may be prepured to meet the charge on the trial. But since the passage of the act of February 23, 1'887, (24 St. 409,) entitled "An act to provide for the execution of the provisions of article two of the treaty" with the emperor of China of November 17, 1880, this right js so restrained that it is now unlawful for any "subject of the emperor of China" to import opium into any port of the United States. Therefore the illegality of this importation of opium may consist in the fact that it was smuggled or that it was imported by a Chinese subject, even if it came through the custom-house, and paid duty. and the indictment ought to show on which of these illegalities, if either. the prosecution relies. The demurrer to the counts for receiving and buying is also sustained.
FAUCHE et 01. 1.
t1.
SCHELL.
(Oircuit (Jowrt, 8. D. New York. October 24, 1887.) CUSTOMS DUTIES::"'AcTION TO RECOVER BACK-PROSPECTIVE PROTEST.
A valid prospective protest against the payment of duties, made on a particular importation of merchandise, and expressing the intention of the importer that the protest shall apply to all· future similar importations made by him, is, under the act of February 26, 1845. (5 U. S. St. at Large, 727,) valid as to subsequent importations of similar merchandise on which like duties are exacted by the same collector.
2. SAME. Such prospective protest is not invalidated as to any of such future similar Importations under the act of February 26, 1845, by the same importer's in-
FAUCHE V. SCHELL.
337
tervening specific protests as to other similar importations, if such specific protests are the same in form with the body.of such prospective protest, and differ from it only in the OInission of the prospective clause therein. B. SAME.
A protest, consisting of two originally distinct pieces of paper.-one a white paper containing an unsigned printed form of one of such specific protests. the other a blue paper pasted to the white paper, and containing a signed printed form of a prospective protest against the exaction of duties on certain commissions,-is a valid protest under the rules applied by the courts to the construction of protests against the exaction of duties. The prospective clause of the commissions protest covers everything in such composite protest from the beginning to the end so far as its form is concerned, and such composite protest is as far-reaching as any prospective protest. A protest made in the case of merchandise not enumerated eo nomine in the .tariff 'act in force at the time of its importation, and stating only that the same is claimed to be dutiable at a rate of duty which is imposed upon upwards of. 50 articles especially enumerated therein, is insufficient under the protest act of February 26, 1845, and no recovery can be had thereunder. Wljere no provision for tbe mode of service upon a collector of customs of a protelltagainst the exaction of duties is made by statute. by treasury regulations, or by such collector. but a particular mode of service thereof has been in force and recognized by the treasury department for a considerable time prior to the appointment of such collector. service thereof in that mode is a good and sufficient service until some change of that mode promulgated by the authority of such collector has been announced.
4.
SAME-ACTION TO RECOVER BACK-SUFFICIENCY OF PROTEST.
5.
SAME-AcTION TO RECOVER BACK-PROTEllT-SERVICE UPON COLLECTOR.
6.
SAME.
When thE! evidence as to the usual course of business at the custom-house produced by an importer in action brought by him against a collector of customs for excessive duties exacted of him by such coUector is sufficient to furnish a stroJigpresumptive case in favor of the service upon such collector. or other person authorized to receive the same, of a protest against such exaction, the proof from the records of protests kept at the custom-house during his term of office as such collector that such protest was recorded when received. and that it stands of record as of a certain date, is abundant to establish the fact that it was served upon such collector, or other authorized per· son, and that it was served in time. . While articles 384. 386, and 387, as to protest under the revenue laws issued by the treasury department February 1, 1857, for the guidance of collectors, or other officers of the customs, and their subordinates, might during the time they were in force have, of course, controlled them, they could not have controlled an importer as to the manner in which he should have prepared his protests.
7.
SAME-ACTION TO RECOVER BACK-TREASURY REGULATIONS.
8.
SAME-ACTION TO RECOVER BACK-PAYMENT TO OBTAIN POSSESSION.
Where an importer, before the delivery to him of his importation of goods, wares, and merchandise, or any part thereof. paid in cash as prescribed by section 12 of the act of August 30, 1842, (5 U. S. St. at Large, 561,) the full amount of duties required thereon by law, and delivered to the collector the 10-day bond prescribed by section 4 of the act of May 28, 1830. (4 U. S. St. at Large, 410,) or where, having in accordance with the same acts so paid the amount of the estimated duties on his importation, and so delivered such bond, he received a portion of such importation, and subsequently and before he received the other portion thereof paid a sufficiently additional amount of duties to make up the full legal amount of duties assessable on the entire importation, such payment or payments was a payment of duties to obtain possession of the entire importation within the terms of the act of February 26, 1845.
At Law. Action to recover back customs duties. Fauche & Co. in 1857 and the two The plaintiff's firm of lucceeding years made 62 importations from France into the port of New v.o3F.no.5-22 .
33,8
FEDERA.I, RE110RTER.
York of certain mllU88eline de laines, composed wholly ofworsted or wo.rsted with a'satinstripe. Oollector Schell olassified theseimportlitions, and exacted duty thereon at the rate of 24 per centum dd v'almem, under the provision for "de laines" contained in Schedule C of the act of July HO, 1846, (9 U. S. St. at Large, 42',) as amended by the act uf March 3, 1857, (11 U. S;'St. at Large, 192.) The plaintiffs' firm claimed that these importations were dutiable at the rate of 19 per centum ad valorem under the provision for "manufactures ofworsted," etc., which (together with the provisions for the same rate of duty on more than 50 other articles) is contained in Schedule D ofsaid act as amended; and brought this suit to recover the duties exacted in excess of 19 per centum ad valore1it.Uponthe trial; it ,appeared that" mousseline de laines" like plain· tift's' in 1857 and the two succeeding year!! dutiable at 19 per centumadv'almem as "'manUfactures of worsted,1' etc., under the provision therefor contained in said Schedttle D, and that in those years the . following laws andtreasury regulations were in force: ., Section 1 ofthe,act of March 3, (9U.S. St. at Large, 629), Which provided all cases is or s!}all' beiJpposed any ad valorem rate of dUty on any goods, wares, or merchandise imported intotbe United States, it shall be the duty of the colletltor,within whose district the same shall be imported or entered, to cause the actual market value or wholesale price thereof at the period of the exportation to the Uniteq,states in the principal markets of the country from which the same shall have been imported into the United States .be and to such, value or price shall be 'added all costs and charges,' 'ex;cept insurance, and inCluding in every case a charge for CQmmissioris.attbe. Wlualrllites, as the tr1,le, value at the port where the same may be entered upon; :which duties shall be assessed." Section 21 of theactof'.Augbst, 30, 1842, (5 U. S. St. at Large, 565,) which provided- . ' : .... .... . ..' the invoice at least. one package of every ,invoice, and one package at least of every ten packages of goods, wares, or merchandise, and a greater, number, Eihould he or either of the deem it,' necessary, imported into sai;«tlJort 'to be ,opened, examined, .and shall 'Order the package or packages so desighated to the pUblic stores for examina,tion." " SectiOli 4 1830,(4 U. S. St. at Large, 410,) :Which provide<! that- ' goods liable to be. inspect!'ldor appraised as aforesaid shall be delivered from the custody of the officers Of the customs until the same shall been .inspected or appraised, or until the packages sent to be inspected or appraised shall be f9Und correctly and fairly invoiced and put up. and so reported to the 'collector: provided, that the collector may,pat the request of the owner, im'porter, consignee. or agpnt, take bonds with approved in double the estJmated value of such goods, that th,ey shall' be the order of the collector at any time within ten days after the package or packages sent to the pUblic shall have been appraised and reported to the collector; and if in the mean'tim'e any of the said packages shall be opened Without the consent of the collector or surveyo'r given in writing, and then in the presence of one of the inspectors of the customs, or if the said package
-P'AUCHEV,. SCHELL.
339
or packages shall not be delivered to the order ot'the collector, according to the condition ·of the said bond, the bond shall in eIther case be forfeited." Article 229 of treasury regulations, issued February 1, 1857, which prescribed a form of bond conforming in its. terms to the requirements with last-mentioned act, (1830.) Section 12 of the act of August 30, 1842, (5 U. S. S1. at Large, 561,) which provide<1that "on and after the day this act goes into operation; the duties on all imported goods, wares, or merchandise shall be paid in cash." Section 1 of the act of February 26, 1845, (5 U. S. St. at Large, 727,) provided "Nothing contained in the second section onhe act entitled 'An act making appropriations for the civil and diplomatic expenses of government for the year 1839,'approved on the third day of March, 1839, shall take away, or be construed to take away or impair, the right of any person or persons who have paid or Shall hereafter pay money, as .for duties, nnder protest, to any collector ot the customs, or other person acting as such, in order to obtain goods, wares, or merchandise, imported by him or them, or on hia or their accoun,t, which duties are not authorized or payable in, part or in whole by law. to maintain in any action at law against such collector or other per· son acting as such, to ascertain and try the legality and validity of such demand andpaymerit of duties, and to have a right to a trial by Jury, touching the same according to the due course of law; nor shall anything contained in thesecolldsection.ofthe act aforesaid be construed to authorize the secretary of the treasury to refund any duties paid under protest; 'nor shall any action be against a;oy collector to recover the. amount of duties so paid under protest. unles!! the said protest was made in writing, and signed bj' the claimant at or befortl the piLyment of said duties, settirig forth distinctly, and specifically the grounds of objection to the payment thereof." Articles 384,386, and 387 of said treasury regulations, which pro· vided that"General protests against the exaction of duties are not admissible; the law requiring a pro(eElt to be made to the col1ect01' of the customs in wliting subscribed by the importer or his duly authorizpd at or before payment of the duties, setting forth distinctly and specifically his obj!'ctinns to the payment of the dutil'S demandt'd. A general protellt, it h.as been decided by the department in conformity with jUdicial decisions made on anyone importation, can not be taken as extending and applying to futurt' impurtations of a similar character. Protests are not to be written on the entry, but on a sep. arate paper to b(' marked with the number of the entry to which it belongs, and kept in a proper file arranged for that purpose;" and that "whenever du· ties are put under a protest, collectors of the customs will have the protest carefully and accurately copied at length in a reeord to b(' kept for that pur· pose, properly compared, verified, and certified as a correct copy by the officer or officers making such comparison; the number and date of entry, name of importer, vessel, and description of merchandise in regard to which the pro. test is made, to be duiy stated on the record for the purpose of identification. ·This prpcaution is deemed necessary liS well for thfl protection of the importer as the Unitl'dRtates, in the event of the loss of the original protest by acci· dent or otherwise." Plaintiffs produced from the custom-house where they were made, the entries made by their tir)l1 of the im portations in suit, together with· va,. riousprotcsts.Of these protests four were written on the enttiesto which they applied, othersY;'eTeattached by wafer to such eritriesrand
840
still others were separate and detached therefrom and indorsed with the date of their receipt or filing. In the usual course of business at custom-house at the time of the importations in suit it was customary for an importer or his broker to write on the entry, or attach thereto by wafer or otherwise, or keep separate and detached therefrom, such protest as he desired to make against the exaction of duties, and, before the payment of such duties to present to the custom-house where the same were received without objection and filed away ,the entry with the protest written thereon or attached thereto, or the eJ;1tryand the protest separate ,and detached therefrom. During this time certain books called "Protest Books" were kept at the custom-house, in which protests so filed and received,were recorded, or supposed to 1:>e recorded. Protests Nos. I and 2 written upon the entries to which they respectively ap. plied,but were not reeorded in the protest books. They were in the following form: ' , ' ,"NEW YORK··Tuly ... "', ... 1857. Esq·· "Oollector of the Port o/.1Vew York-SIR:, We hereby protest against the payment of a duty of twenty-four per cent. charged by you on worsted stuff good;'i.claiming that laws said goods are only liable to a duty of nineteen per cent. as, amllnufacture of worsted. We pay the amount exacted by you to obtain possession of the goods. claiming to have the difference refun,ded. LACHAIBE. F AUCHE & Co." Protest No.3 was attached by wafer to its ehtry,and pro'test No.4 written on its entry j but neither was recorded. Their form was as follows: ' "NEW YORK. July 27. 1857. "Augustus Schell. Esq......:.SIR: We hereby protest against the payment of a duty of 24 % charged by you on worsted stuff goods. claiming that under existing laws said goods are onlyliable to a duty of We pay the amount exacted to obtain possession of the goods, claiming to have the difference of duty refunded to us. "Yours respectfully, LACHAISE. F AUCHE & Co." Protest No.5 was a printed protest attached by wafer to its entry; and recorded. Its form was as fo1l9ws: "NEW YORK. Jany. 30th. 1858. "Attgustus Schell, Esq., Oollectorof Oustoms-SIR: We object to the classification of our mousseline de laines, or worsted mousselines embraced in our entry ... ... ... marked ... ... ... No. ... ... ... under schedule C, thereby subjecting them to a duty of 24 per centum ad valo1'em, while we clailn they are liable to 19 per centum only, and forthe following reasons. viz.: Because the article of worsted mousseline or mousseline de laine, being a manufacture composed wholly of worsted, is SUbject only to the duty imposed on worsted fabrics, viz., 19 per centum; that it has no connection with the article denominated and known among merchants and dealers in the article as' De Laines,' which is specified under Schedule C,and which is composed of a cotton warp and worsted weft; that the article of mousseline de laine, or worsted mousseline, was known among merchants and dealers in the article at and long before the passage of the tariff act of March 3, 1857,\ by that name its a manufacture of worsted, and as an article totally and entirely distinct from the fabric manufactured of worsted and cotton known among merchants and dealers in the article exclusively by the title or name of 'De Laines;' that the
341
article known as · Mousseline de Laine' is not manufactured in this country, while the article known as · DeLaine' is extensively produced here; and it could not have been the intention of congress to impose a cotton dnty upon an article manufactured wholly of worsted, and which did not come in competition with an American product. For these reasons. we contend that we are entitled to enter and pay duty on the above described goods at the rate of duty on manufactures of worsted, and protest against the payment of a higher rate of duty. Yours, &c., LACHAISE, F AUCHE & Co." Protest No.6 was attached by wafer to its entry, and recorded. It
consisted of two pieces of paper-one a white paper containing an unsigned printed form of protest, dated February 10, 1858, like protest No.5; and the other, a blue paper pasted to the white paper, and containing a signed printed form of a commissions protest, which concluded with the following prospective clause: "You are hereby notified that we desire and intend this prote8t to apply to all future similar importations made by us." There were two other protests like No.6, attached by wafer to their entries subsequently made but not recorded and in suit. Protests .like these three, the evidence showed, importers and their custom-house brokerl:l were accustomed in the years mentioned to make for their convenience and to save time. After the making of the importations to which the foregoing protests applied, plaintiffs' firm made other similar importations, as to some of which they made special protest like No.5, and as to others of which they made no protests, but relied,upon protest No.6. Many of the latter importations followed specially protested ones. Accordiilg to the usual course of business at the custom-house during the years in which the importations in suit were made, an importer, to obtain possession of a portion of his importation before the time first prescribed by section 4 of the act of 1830, was obliged to give the 10-day bond required by that section, and pay to the collector the estimated duties on such importation; and thathe then obtained possession of all his importation with the exception of such packages as were designated by the collector pursuant to section 21 of the act of 1842 for examination by the appraiser. In case of most of the importations in suit at the close of the trial, the amount of the estimated duties 'so paid was at the rate of 24 per centum ,q,d valorem; but in case of the others, the amount of estimated duties so paid was at the rate of 19 per centum ad valorem on each importation thereof; but before the plaintiffs' firm received the packages thereof designated for examination, they were obliged to pay an additional duty of 5 per cent. on all of such importation. Both sides having rested, the defendant's counsel moved the court to direct the jury to find a verdict for the defendants: Jilirst. As to every importation in suit on the ground (1) that the duties sought to be recov were not paid to obtain possession thereof as required by the act of red February 26, 1845; and (2) that it was not shown that any of the protests, ullon which plaintiffs relied to recover such duties, was ever sen'ed upon tile collector, and if so served, was ever so served at or before the payment thereof as required by the same act. Second. As to the importations to which protests Nos. I, 2, 3, and 4, respectively applied, on the
342
grounds (l) that neither of said. protests set forth distincUy and . ally the ground of qbjection to the pl;iyment thereon of the duty sought to be]'ecovered, as ;required by thesanieact; RIl.d (2) that neither was recorded in the protest books of the custom-house. Third. As to each of the three importations to which protest No, 6 and the other two like protests respectively applied, on the ground that the 'IIioU8seline de laine protest part of such protest was unsigned, and the signature to the distinct charges ilnd commissions protest part thereof was not the signature to such mousseline de laine protest part as was required by the same act. Fourth. As to certain of the importations which were without protests of their own, on the ground (1) thatpJaintiffs' firm had made no protest as to any of such importations,-as required by the same act; and (2) that if the concluding prospective clause of protest No.6, or of either of the other two like protests, be held to be a part of the mousseline de laine part thereof, neither protest No. 6, nor either of the other two like protests, was such a protest as to any bfsaid importations as was required by the same act. Fifth. As to others of the importations; which were without protests of their own, on thesame;grounds as just stated; and on the further ground that, as there intervened between protests No.6, or either of the other two like protests andauchunprotestedimportations, various importations with protests like No. "5, special or without prospective clause, the prospective clause of N0l6; and of each of the other two like protests, was to such unprotested importations nullified by such intervening protest, under the principle laid down in Baxter v. Maxwell, 4 .Blatchf. 3 2 . , '.'
as
Almon W. Griswold, and Almon W. Griswold, Jr., for plaintiffs, cited, Section 21, .Aqt Aug. 80, 1;.8. St. at Large. 565;} section 4, Act MaY,2l:l, 1830. (4 U.I:I. 8t. 410;) section .12, ,Act Aug., 30. 1842. (5,u. S. !:It. 561;) fh'eely's Arlm'rs v. Burges,Y.18 How; 413: Vacca1'1, v. Maxwell, 3 B1atchf. 369,374; A1'Umrv.Mor,lfan,1l2 U. S. 495. 5 Sup. Ct. Rep. 241; Frazee v. Moffitt, 20 Blatchf. 2m. Rep. 5l:!4; v. Horton. 1 Curt. 294; v. Morton, Id. 413; Ounve1'se,2 Curt. 216: Schul;hardt v. La'iJ)1'ence, 3 BJatchf. 397: Brune v. Mar.riott, Taney, };i2, 9 How. man V. Mawwell, 3 Blatchf.365;Hiitton v. Schell. 6 Blatchf. Wetter v. Schell. 11 lliatchf. 193; Ullman v. M1JJphy. Id. 354; Herman v. Schell, 18 l'ed. Rep. 89L '
wood. Asst. U. S. AUys., for'defendants, cited-
,'Stephen A. Walker, U. S. Atty. I and Henry C. Platt and Thomas Green-
llcirteia v.Sr:hell, 16 Fed. 341: Act Fpb. 26,,1845, (5 U. S. St. 727;) Moke v. Bamey. 5 Blatchf. 274; Wats9Jt v. Ba'rney, 92 U. S, 449; U. S. v. 120 U. S. 109.7 !:lup. Ct. Rep. 442; Milson v. M1t1phy" 115 U. S. 579,6 Sup, Ct. Rt':p. 185; Ohar1'onv. Redfield, INGERSOLL,J., November, 1!:l57, unreported; Thompson v. Maxwell. 2 Blatchf'.392; Boeke v. Lawrence, 1;4.· 51;llkSadler v. Maxwell, 3 Hlatqh(, ,134; v. Maxwell. Id. 138; Orof1Jley v. Maxwell. Id.4:04; .Swanston v. Morton. 1 Curt. 294: Kriesler v. M01·tOI/" Id. 4li3, 417; Ourtis' Adm'r v. Fielder. 2 Black, 461; Dar;ies v. Arthur, 96 U. S. 148;' Articles m:l4, 380. 387. '£rpasnry 1857; Wa1'renv. Pel.lslee, 2 Curt. 231; Baxter v. Maxwell, 4 Blatchf. 32.
343
LACOMBE, J., (ora71y.) The question of prospective protests is common to many of these entries. If thi's were a question simply of a consideration of the decision in Brune v. MamoU, 9 How. 619, and of the acl of 184f>, I should have very little difficulty in dealing with it. The de·cision in the Mm-riott Case is very carefully guarded by the courL It is restricted to the facts before it. The court expressly says in the opinion that the amount is very small; that there was a common understanding between the collector and the importer that these protests were good generally; and that the money paid for duty had not been covered into the treasury. I should not consider that decision as sufficiently authoritative to require the ingrafting upon the act of 1845 of the doctrine of prospective protests. I do not see that that act contemplated any such method of protest. But it is undoubtedly the fact that, by a gradual process of accretion which has gone on for many years, each decision going further'than the one before it, the weight of authority in this circuit is, undoubtedly, in favor of a liberal construction of these protestsj and that, of course, is controlling upon us here. The only qualification in this circuit to which my attention has been called is the case of Baxter v. MaxweU,4 Blatchf. 32. In that case, as I understand it, subsequent to the service of the prOt>pective protest,there were served, as to different importations, specific proteE-ts, stating other and different grounds from those named in the prospective protests; and not reiteratingthe grounds therein -stated. .'The court held that in such cases the importer was to be restricted which his protest alleged with regard to that impor. to the tationjandthat the fact that he had failed to reiterate the old ground, and stood,as to that importation,upon the new grounds,would be'suffi<lient tciwa.rra,nt the collector in assuming that from and after the service :Ofthisa'l1li!TU1ed protest,aswe might call it, that is, the new statement of hisgrou'fids, he intended to rely only upon the grounds then given. The facts in this case are not parallel with that cited; because, from the beginning of these protests to the .end of them (certainly from: protest No.6, the firstprrn!lpective protest, down to the close) the importers always !'ervad, with each of these protests' this Bame mousseline'delaine protest. 'Sometimes it is accompanied with other protests, and with·the prospective clause, and sometimes it is notj but he never makeaany protest at all without reiterating the mousseline delaine protest. Rehas 11ot, therefore, as to that, shifted his ground, as the importer did in the Baxter Case; and, therefore, in my judgment, is not within rule there laid down. I feel constrained, therefore, by the decisions in 'this circuit, to rule that the prospective protests are good as covering subsequent importations. There is here no general prospective protest. There are a number of specific protests with a general clause attached to them. In order to obtain any vitality at all they must, of course, have been properly served as specific protet:ltsj otherwise they would have no force at all, and would not operate as prospective protests. For instance; ifthe money was paid oIfJanuilry 2d, and on January 4th a protest was madaas against thatitnportation, that protest would not be 'good as to that im-
the
344
portation, nor would I be inclined to extend the doctrine of prospective prqtests so as to hold its prospective clause good as to any other importation. ,But if a prospective protest, with a general clause at the end, is properly served) and is in proper form, and may be regarded as a specific protest, the clause would then become operative as a general protest, prospective in its effect, and covering future importations. With 'that understanding we may proceed to an examination of these various items. It is true that the importer has to do three things: he has to show thl1t the rate of duty was excessive; that the duties were paid in order to obtain possession of the goods; and that a protest, in writing, signed by him, distinctly and specifically setting forth the grounds of his objection, was served at or before.the payment of the duties. Concededly the d.utiesare.excessive; and that question is out of the case. The next question is as to the payment in order to get possession of the goods. Now, the law in force at that time required that duties should be paid in cash; and also required that the duties should be paid before the gqods were delivered. In the case therefore of all these entries where .the original amount of duty paid was computed at the rate of 24 per cent., and where it appears that, as matter of fact, the duty was paid it must be assumed that the duty was before the goods were paid to obtain ,possession of the goods. The law requires that the duty should be paid first. The law forbade the delivery of the goods without payment of the duty. !fAihe duty were in fact paid· before the goods were delivered, it ,is a proper assumption that it was paid to obtain possession of the goods. With regard to those cases where there were amended entJ;ies, where, subseqtlent to the first payment, there has been an increase of duty, and the increased amount paid, it appears in each case, except in those which have been disclaimed, that the duty was in fact paid before the packages which were sent to. the appraiser's stores for examination were delivered. The condition there was this. The . law required that duties should be paid before the goods were delivered. The goods which had been delivered to the merchant prior to the examination and increase of duty, were delivered under the 10-day bond, .which obligated the importer, (as I understand its form, and I think one is in evidence; if not, the form appears from the regulations,) to return the goods upon call, if that call was ma,de within 10 days. In view of that factJ am clearly of the opinion tha,t the duties which were paid before the delivery of-the last packages ofgoods were paid to obtain possession of the goods within the meaning of the statute. The only question then left isa.s to the protest; that is, as to its form, as to its service (meaning the method of service) and as to the time of servicl:\. As to the form of these printed protests, and notably of the first sO'-called prospective protest No.6, where one protest is pasted to I:\oother, with the signature at the foot of the composite document thus 1 am of the opinion that in view of the decisions as to the rules which should be applied in the construction of these protests, which are prevared by business men, and in the hurry of business, that the protest is stlfficientj that the prospective clause covers everything that
345
is in it from the beginning to the end; and that, therefore, so far as mere form is concerned, the first prospective protest put in will cover all the subsequent importa;tions. On the question of form, there only remain the first five· of these protests. I think that Nos. 1, 2, and 5 are sufficient in form, in view of the decisions which have been cited on the argument, because they indicate to what particular part of the tariff act the importer appealed for a rectification of the amount of duties exacted from him. As to Nos. 3 and 4, I am not satisfied that they do, with any sufficient. degree of clearness, or that they do at all, indicate upon what clause it was that the importer relied as securing him the 19 per cent. duty. It will not do for an importer to say" my goods are subject to the 19 per cent. clause," or the 10 per cent. clause, or are on the free list; but he must indicate in what part of that clause they are designated. He need not do so by an enumeration of the particular section, or by any technical wording; but he must do so, in his protest, in language so plain that there will be no difficulty in finding whereabouts it is that he supposes that the exemption, or the reduction of duty, is provided for. 'I'herefore, as to Nos. 3 and 4, I shall direct a verdict for the defendant, . on the ground of the insufficiency of the form of protest. The next question is as to the service of protest, as to its method of service; The regulations and the statute are alike silent as to who shall be served. That being so, inasmuch as it is a protest against the action of the collector, we may assume that it should be served upon him, or upon such person as might properly take his place for the purpose of service. In the absence of anything controlling, either in the statute or in the regulations, it would be for the collector, within reasonable limits, to determine in what way the protest should be served. Of course it would not be expected that the collector should himself receive all these notices, unless he chose to do so. He might delegate anyone to receive them. They might be served upon the collector personally, or they might be served DPon such deputy, clerk, or officer in the department as he might have designated to receive them. They might be served by depositing them in such receptacle in the department as he might have designated as the place where they should be put. Where a particular method of serving protests against exactions of duties generally had been in force, and recognized by the department fora considerable time past, it is to be assumed that service made in that way is sufficient until some change, promulgated by authority of the collector, is announced. Now. while there is no official order made by the collector in evidence, still there is evidence here of a custom, method, or usage' in which, for a considerable period of time anterior to the date of these transactions, and, as I understand it, anterior to the promulgation of the regulations of 1857, these protests were served; namely, by passing them in with the entry. In the absence of any proof of promulgation by the collector, of an order making some alteration in that method of service. I shall hold that it is a sufficient method, so far as the manner of service is concerned. The regulations which have been put in evidencB may, of course, control the collector, but they cannot control th'3
346
FEDERAL REPGRTER.
hnporferas to the manner in which he shall prepar!'l these notices. For instance, a provision that he shall not write a protpst on the entry, or a provision: that he shall write it ona separate piece of paper, und not fasten, it 'to the entry, or any regulation of that kind, might be binding upon'the ool1ector, and perhaps upon the other officers of the government so to justify them in refusing to consider the protest, or to make a: But, whenever the importer goes into court, if he shows that he served the protest which the statute called for, awritten protest signed by himself, setting forth distinctly and specifically the grounds of his objection, and served it on the collector, or on such person as might properly be considered the alte'rego of the collector for the' purpose of receivinK the notice, he has complied with' all the requirements which the law calls upon him to c0mply with. form; and the manner and time of service, With these views as to left in this, case. The service of the first prospective there protest, No.6, is proved as fully and completely as I suppose it is ever possible; after the lapse ofagenerlltion to prove any particular transac-: tion. The proOf offered by the plaintiffs furnishes a strong presumptive case in favor of the service of the protest; and the proof from the records of the department that8uch protest was recorded when received, and stands ofrecord as of a 'certain date, is abundant to establish the fact that it was served on the collector, or on the proper party authorized to receive it, and that it was served in time. FroiD and after the service ofthat protest, therefore, all questions liS to the form of protest, or as to the manner of aery-ice, or as to the date of service, require no further consideration. The doctrine of prospective protest, as laid down in this circuit, is sufficient to cover all the subsequent importations. Number 5, the entry by the Momil1g-Star, stands in precisely the same position. That protest is also recorded in the books of the customhouse. The fact of its recording, and that it is recorded there, and that the date of its recording there is sufficient in point of time, is sufficiently established to warrant the hOlding of the sufficiency of the protest in point of time. , Numbers 3 and 4 are disposed of in the other branch of the case, and there then remain only Nos. 1 and 2. , As to these protests I have more doubt upon the question as to whether or not I should send -it to the jury to determine whether they were served in time. But, in view of all the evidence in the case, in view of the fact that they come .here in. writing, on the face of the entry; a method of protest which, under the statute, the importer was entitled to adopt if he chose to do so,and in view of proof of the fact that from the time that the entry the cashier, at' or about the' time of the payment of duties/it pa$ses out of the custody of the merchant and remains in the custody of the custom-house, except so far as he Illlly from time to time be able. to IObkat it'in the presence of the custom-house officers, I have al'rived at the absence of a1'ly'e,'idencecxcept the presumptions, or inferences to be drawn from these protest books, and from the fact that the instrument 'wa:snot recorded therel-that there is sufficient
BERBANA 1.. JEFFEBSON.
347
proof here which is practically uncontradi<lted to warrant the {lourt in taking it from the jury, and in drawing the inferende that the protests in regard to .the entries Nos. 1 and 2 were served in proper time. deny the several motions of the defendant, except the one I as to Nos. 3 and4j directing a verdict for the defendant for Nos. 3 and 4, on the grounds stated; and a verdict for the plaintiffs as to the others.
SERRANA
et al
'V. JEFFERSON
et al.
(Circuit (JO'Urt, B. D. Ne'lfI York.
January 8,1888.)
(',oPYRIGRT-l'LAYS-MECHANICAL CONTRIVANCE-IMITATION OJ' RIVER.
A mechanical contrivance consisting. of a real tank. into which real water is made to fall, and running thence off underneath the stage, representing a river into which in the course of a theatrical play the villain is made to fall from a brIdge above, not being a link in the chain of incident which. together with the speech and action of the performance. constitute a series of events concededly novel, is not such a mechanical contrivance as will be protected by copyright of the play in which it is introduced.
Patrick E. OaUahan, for complainant. A. J. DittenhoeJer, for defendants.
In,Equity.Motion for perpetual injunction.
J. The plaintiffs have elaborated Mr. Vincent Crommles' dramatic conception of a real pump and wash-tubs. In the fourth act of their play entitled" Donna Bianca, or Brought to Light," they set in the stage a real tank, three feet square. and seven feet deep, filled with natural water. This water flows through a trough from behind a battlement waU at the rear of the stage, falling into the tank and running off underneath the stage. The water in this tank and .trough represents a river. It is crossed by a bridge, upon which, after an angry dialogue between the hero and the villain of the play, there ensues a strup;gle in which the villain falls through the bridge into the water below. Plaintiffs allege that their play is copyrighted, and, by virtue of that circumstance, pray for an injunction against the defendants. These latter are now managing and producing, at the Academy of Music in this city, a play entitled" A Dark Secret." Here, too, there is placed upon or set into the stage a tank considerably larger than the plaintiffs' tank and trough, also filled with natural water, and intended to represent the river Thames. Into this tank the heroine of the play is thrown, after appropriate dialogue. It is alleged that these immersion scenes in the two plays are prominent features and add greatly to their attractiveness. There is. nothing original in the incident thus represented on the stage. Heroes and heroines, as well as villians, of both sexes, have for a time whereof the memory of the theater-goer runneth not to the contrary, been precipitated. into ponds, lakes, rivers, and seas. So fre-