In October, 1888, Joseph Birtwell brought an action in the circuit court of the United States for the district of Massachusetts against Leverett Saltonstall, collector of the customs for the revenue district of Boston, to recover excess of duties paid under protest on importations. The trial resulted in a judgment for Birtwell, which was brought on error to this court, where the same was reversed, and the case was returned to the circuit court for a new trial. 150 U.S. 417, 14 Sup. Ct. 169.
In June, 1894, the case was again called for trial in the circuit court (63 Fed. 1004), and again resulted in a judgment for Birtwell. The case then went by writ of error to the United States circuit court of appeals for the First circuit, which court affirmed the judgment of the circuit court. 14 C. C. A. 205, 66 Fed. 969.
In April, 1895, the cause was removed into the supreme court by virtue of a writ of certiorari. The return to the writ set forth a stipulation between the counsel for the respective parties that the certified copy of the record of the cause in the circuit court of appeals for the First circuit, on file in the supreme court, should be treated as the return to the writ. That record discloses that at the trial in the circuit court the following proceedings took place:
"It is hereby agreed that trial by jury may be waived in the above-entitled case, and that the same may be tried and determined by the court without the intervention of a jury, as provided in sections 649 and 700 of the Revised Statutes of the United States.
"J. P. Tucker,
"Attorney for Plaintiff.
"Sherman Hoar,
"Attorney for Defendant and United States Attorney.'
'Issue being joined, this cause came on to be heard by the court, the Honorable Le Baron B. Colt, Circuit Judge, sitting.
'On October 2, 1894, at the time of the hearing the following admission on the part of the defendant is filed:
"It is hereby admitted that the 432 pieces of iron and the 4 pieces of iron-the proper classification of which for duty under the tariff act of March 3, 1883, is in question in the above-entitled case-are for the purposes of this case, and for this case alone, 'manufactures not specially enumerated or provided for in' said 'act, composed wholly of iron,' within the meaning of Schedule C (paragraph 216, Treasury Compilation) of said act, and are subject to duty under said paragraph at the rate of forty-five per centum ad valorem.
"This admission as to the classification and nature of said pieces of iron is made to apply to this case, and to this case alone, and the United States and the defendant are not to be estopped or prejudiced thereby in any other case whatsoever.
"Sherman Hoar, United States Attorney.'
'At the same time the following motion for finding is filed by defendant:
"The defendant moves the court to rule that on all the evidence in this case, including the written admission of the defendant now on file in said case, the plaintiff has failed to prove his case, inasmuch as he has failed to show that he paid to the defendant under protest, and for the purpose of obtaining his merchandise, according to the provisions of law in force at the time of his importation, the duties he now seeks to recover.
"And said defendant moves the court to rule that on all the evidence in this case, including the aforesaid admission of the defendant, the plaintiff has failed to prove his case, inasmuch as be has failed to show that he complied with the provisions of law relative to protest in force at the time of his said importation.
"And said defendant moves the court to rule that on all the evidence in this case, including the aforesaid admission of the defendant, the plaintiff has failed to prove his case.
"And the defendant moves also that the court find generally for him.
"Sherman Hoar, United States Attorney.'
'Said motion is thereupon overruled by the court, and judgment ordered to be entered for the plaintiff.
'On the 13th day of October the following findings of fact are filed by the court:
'The court finds the following facts:
'(1) That on February 27, 1888, the plaintiff Joseph Birtwell imported, ex steamship Jan Breydel, from a foreign country into the port of Boston, and entered at the customhouse at said port, certain iron, described in the entry as '432 pieces in manufactures of iron for the third floor of the Boston courthouse,' drilled and fitted complete, as required by plan, and painted.