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.