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WILLIAM H. TRACY AND JOHN B. BALESTIER, PLAINTIFFS IN ERROR v. SAMUEL SWARTWOUT.

January 1, 1836

WILLIAM H. TRACY AND JOHN B. BALESTIER, PLAINTIFFS IN ERROR
v.
SAMUEL SWARTWOUT.



IN error to the circuit court of the United States for the southern district of New York. This action was commenced by the plaintiffs in error in the superior court of the city of New York, and on the suggestion of the defendant, that the suit was instituted against him for acts done by him under the revenue laws, as collector for the district of the city of New York, and praying that the same should be removed to the circuit court of the United States for the southern district of New York; the cause was so removed to October term, 1833. The declaration was in trover for certain casks of sirup of sugar-cane. Special counts were added, setting forth that the plaintiffs had imported certain casks of sirup of sugar-cane, on which the duty was fifteen per cent. ad valorem; that the plaintiffs were ready and willing, and offered to enter the goods at the legal rate of duty, and to give bonds accordingly, and to do every act necessary to making such entry. Nevertheless, the defendant, although he declared himself satisfied with the sufficiency of the offer or tender of the plaintiffs, except as to the amount of duties, for which he required bonds in a much larger amount, over three cents per pound, for every pound of said sirup; and, although defendant then waived any further tender, nevertheless, he refused to allow plaintiffs to enter and secure the duties on the sirup at the rate required by law, and refused to deliver the sirup for a long time, over eighteen months, when it was delivered upon payment of the duties, at fifteen per cent. ad valorem; whereby plaintiffs were damaged by the deterioration of the property, &c., stating the damage specially. The defendant pleaded the general issue.

The opinion of the court was delivered by: On the trial, it was proved that the goods were consigned by plaintiffs to one F. A. Tracy, of New York, to sell for plaintiffs. That F. A. Tracy, by his attorney, J. S. Carpenter, the witness, offered to enter the goods shortly after the arrival, at fifteen per cent. ad valorem.

The collector said he had instructions from the department not to permit the entry at less than three cents per pound. The witness adds, 'he said he would permit the entry at fifteen per cent. ad valorem, but should require bonds at three cents per pound.'

Some time after this, Balestier, one of the plaintiffs, arrived in this country, and he went to the collector in company with the witness, E. A. Weeks, and then delivered him the letter set out in the bill of exceptions, making an offer of bonds at fifteen per cent. ad valorem, inquiring whether a formal tender of a bond or bonds as aforesaid was required. He exhibited the bills of lading, invoices, &c. The collector said 'he could not act, he could not permit him to enter the goods upon the terms and at the rate of duty mentioned in the letter, because it was contrary to instructions from the department.' 'The collector did not refuse an entry to be made, but insisted that the goods should pay a higher rate of duty.'

It appeared that the duties demanded were equal, if not greater than the value of the goods; the consignee would not bond them, and plaintiffs offered to prove that they were unable to furnish bonds at the rate demanded by the collector.

The goods were put in a public store, and remained there a long time; they were finally delivered to the plaintiffs on their bonds, at the rate of fifteen per cent. ad valorem. 'The department' having in the mean time changed its views of the law of July 14, 1832. Sec. 17After the foregoing evidence had been given, the plaintiffs procured several witnesses to prove that the sirup was worth from eight to ten cents per gallon less, when given up by the collector, than when the bonds were offered, in consequence of necessarily growing acid by standing.

The court charged the jury, 'that admitting the merchandise in question to be subject to a duty of only fifteen per cent. ad valorem, yet the circumstances under which the dispute about the rate of duty arose, ought not to subject the collector to the payment of more than nominal damages; that the collector was pursuing what he believed to be his duty, and whatever injury the plaintiffs sustained in not receiving their goods at an earlier day, grew out of their own conduct, in not entering the goods in the manner offered by the collector, at fifteen per cent. ad valorem, taking the bond, however, to secure the payment of three cents per pound; merely placing the case in a situation to have the question judicially decided as to the rate of duty; no intimation being given that it would occasion any inconvenience to the plaintiffs, to give the bond so required by the collector.' To this charge the plaintiffs' counsel excepted; and the jury found for plaintiffs six cents. The plaintiffs prosecuted this writ of error.

The case was submitted to the court on printed arguments by Mr. Sedgwick for the plaintiffs in error, and by Mr. Price, district attorney of the United States, for the southern district of New York, for the defendant.

Mr. Sedgwick for the plaintiff presented two points for the consideration of the court:

1st. The plaintiffs had a good cause of action against the collector for damages, actually sustained.

2d. The judge erred in charging the jury as to the rights of the plaintiff.

As to the first point, it was argued that the doubts which previously prevailed as to the responsibility of the collector for wrong done, in such a case as the present, no longer existed. The great principle is stated by Chief Justice Spencer, in Bartlett v. Crozier, (15 John. 254,) 'whenever an individual has sustained an injury by the mis-feasance or non-reasance of an officer who acts or omits to act, contrary to his duty, the law affords redress.' Cited also, 8 Wentworth 462; Olney v. Arnold, 3 Dalt. 308. In Conard v. The Pacific Ins. Company, 6 Peters 281, the precise doctrine contended for is laid down by the court, that the possession of the collector is a mixed possession, for the benefit of the owner and the government, and 'that when the duties are paid or tendered, if the collector retains the goods, it is a tortuous conversion.'

There is nothing in this case which should protect the collector from the operation of this rule. The judge seems to suppose that the plaintiffs unnecessarily involved themselves in the situation in which they were placed; that they might have given bonds for the duties as claimed. But if this were so, still they had a right to refuse giving bonds for more than the actual duties; and they had, on tendering such bonds, a full right to the goods; and the detention of them by the collector, afterwards, made him responsible.

But the facts of the case do not authorize any charge against the plaintiffs. An offer was made of the actual duties; and it was, in the opinion of the attorney of the consignee, doubtful whether the goods would have sold for the duties claimed. Evidence was offered to prove the inability of the plaintiffs to procure bonds for the amount of the claimed duties, but this was not permitted. The communication of this would not have induced the collector to change his course.

It is said the loss of the plaintiffs arose from not having entered the goods, in the manner offered by the collector, at fifteen per cent. ad valorem; and giving bonds at the higher duty. But the offer is denied, and if it had been made, it would not diminish the plaintiffs' claims in this case. But the offer was to allow an entry at fifteen per cent. when bonds for three cents per pound were insisted upon; and this is the grievance: for the goods could not be obtained until these bonds were afterwards given. But suppose a party, under such circumstances, could give a bond; how is it possible that a man could be bound in law to give a bond which the law says he ought not to pay? If lawyers can surmount this paradox, merchants would be very apt to find, in the uncertainty of all legal disputes, a substantial reason against signing a bond, and trusting to law for avoiding it afterwards. It has been shown that the plaintiffs had a clear cause of action to recover their actual damages; which, in point of fact, amounted to a large sum of money.

II. The next inquiry is, whether his honor the judge misdirected the jury.

It is submitted to the recollection of the judge who tried this cause, that after he expressed an opinion that the case of the plaintiffs was one of damnum absque injuria, as the bonds might have been given, an offer was made to prove inability; which was rejected by the court, no notice of this having been given to the collector. The jury were, therefore, not addressed by the counsel on the question of damages.

The court will, however, look only at the bill of exceptions.

The inquiry is, whether the exception here is as to matter of law or matter of fact. Exceptions are doubtless confined to matters of law, and extend 'to every case in which the judge, in his directions or decisions, misstates the law.' (3 Black. Com., 372.) The question, on this point ought to be decided with reference to the impression which the charge was calculated to make upon the jury; and if they gave their verdict in compliance with what they had reason to suppose the judge charged the law to be, and in consequence of that charge; the verdict ought to be set aside. The judge charged the jury, that the circumstances under which the dispute about the rate of duty arose, ought not to subject the collector to the payment of more than nominal damages.

It might be supposed that the judge, by admitting the case to be one of nominal damages, plainly intimated that the law was with the plaintiffs. But it is submitted, that the idea which the jury must have received, was that the right of the case, in point of law, was with the defendant. They always regard a verdict of six cents as mere matter of form; and so it is in point of fact, unless it be a case taken out of the general rule as to costs by a special provision of the statute. The judge declared that the plaintiffs ought not to recover, under the circumstances of the case. The jury must have understood that it was their duty to render a verdict for nominal damages. They most assuredly did, in point of fact, render their verdict, because they considered themselves bound to do so by the charge of the judge.

His honor the judge proceeded to state the principal circumstances on which his opinion rested, and the first was that the collector was pursuing what he believed to be his duty. This was a good reason why we should not receive smart-money, or any thing beyond our actual damages; but the jury must have supposed, that this circumstance, taken in connexion with the fact, that if bonds had been given for the amount claimed by the collector, the obligors might have defended themselves against the suit on those bonds, constituted a good defence in this suit against the recovery of any thing but nominal damages. Both these circumstances, especially that relating to the quo animo of the collector, were such as would naturally give rise to a question of law which very naturally and necessarily presents itself; vix.: does the law in such a case allow a recovery against an innocent collector? The jury must have seen that this was a question of law; and when the judge said the plaintiffs ought not to recover, it was equivalent to saying that they ought not in judgment of law to recover.

If we consider the proper province of the court and jury respectively in this case, the error of the charge will be apparent.

The questions for the court were, 1st, whether the bona fides of the collector was a defence; 2d. Whether the right of an obligor on such bonds to contest the duties, makes it the duty of the party to give the bond; or in case of his omission, deprives him of his action? 3d. The rule of damages, viz: Whether we were to recover for any difference in the market at the respective periods of the offer to bond, and the delivery of the property; or only for the deterioration and necessary leakage.

The question for the jury was, what was the amount of damages according to the rule which the court should lay down. In consequence of the opinion of the judge, expressed to the counsel, they did not sum up. The court told the jury they ought to find nominal damages; in short, that was their rule of damages, and of course, they had nothing to inquire about; and so they understood it, for they rendered their verdict immediately.

It appears to follow, that the charge of the judge was, in point of fact, what the jury understood it to be, a charge as to the law; and not as it is now interpreted, an opinion upon the facts of the case.

But whether it was so in fact, or was so understood by the jury, to be a charge on the law; in either case, the verdict ...


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