defendant into his custody. force. very of such process, or leaving the same as aforesaid, shall be deemed and taken to be 2 March 1832. moved to the said circuit court, and any further proceedings, trial or judgment therein in the state court shall be wholly null and void. And if the defendant in any such suit Marshal to take be in actual custody on mesne process therein, it shall be the duty of the marshal, by virtue of the writ of habeas corpus cum causa, to take the body of the defendant into his custody, to be dealt with in the said cause according to the rules of law and the order of the circuit court, or of any judge thereof, in vacation. And all attachments made, Attachments, and all bail and other security given upon such suit or prosecution, shall be and continue &c. to remain in in like force and effect, as if the same suit or prosecution had proceeded to final judgment and execution in the state court. And if, upon the removal of any such suit or when proceed prosecution, it shall be made to appear to the said circuit court that no copy of the record and proceedings therein, in the state court, can be obtained, it shall be lawful for said circuit court to allow and require the plaintiff to proceed de novo, and to file a declaration of his cause of action, and the parties may thereupon proceed as in actions originally brought in said circuit court; and on failure of so proceeding, judgment of non pros. may be rendered against the plaintiff with costs for the defendant. ings to be de novo. Ibid. 24. refused Ibid. 26. 308. In any case in which any party is, or may be by law, entitled to copies of the record and proceedings in any suit or prosecution in any state court, to be used in any How record supcourt of the United States, if the clerk of said state court shall, upon demand, and the pay-plied if refus ment or tender of the legal fees, refuse or neglect to deliver to such party certified copies court. of such record and proceedings, the court of the United States in which such record and proceedings may be needed, on proof, by affidavit, that the clerk of such state court has refused or neglected to deliver copies thereof, on demand as aforesaid, may direct and allow such record to be supplied by affidavit, or otherwise, as the circumstances of the case may require and allow; and, thereupon, such proceeding, trial and judgment may be had in the said court of the United States, and all such processes awarded, as if certified copies of such records and proceedings had been regularly before the said court. 309. In any state where the jails are not allowed to be used for the imprisonment of persons arrested or committed under the laws of the United States, or where houses are Marshals may not allowed to be so used, it shall and may be lawful for any marshal, under the direc- select prisons. tion of the judge of the United States for the proper district, to use other convenient places, within the limits of said state, and to make such other provision as he may deem expedient and necessary for that purpose. 310. Either of the justices of the supreme court, or a judge of any district court of Ibid. 27. the United States, in addition to the authority already conferred by law, shall have Defendants in power to grant writs of habeas corpus in all cases of a prisoner or prisoners, in jail or prison may be discharged on confinement, where he or they shall be committed or confined on, or by any authority habeas corpus. or law, for any act done, or omitted to be done, in pursuance of a law of the United States, or any order, process or decree of any judge or court thereof, anything in any act of congress to the contrary notwithstanding. (a) And if any person or persons to whom such writ of habeas corpus may be directed, shall refuse to obey the same, or shall neglect or refuse to make return, or shall make a false return thereto, in addition to the remedies already given by law, he or they shall be deemed and taken to be guilty of a misdemeanor, and shall, on conviction before any court of competent jurisdiction, he punished by fine, not exceeding one thousand dollars, and by imprisonment, not exceeding six months, or by either, according to the nature and aggravation of the case. 3 Stat. 244. the state courts. 311. The respective state or county courts within or next adjoining a collection dis-3 March 1815 2 1. trict established by any act of congress now in being, or hereafter to be passed for the collection of any direct tax or internal duties of the United States, shall be, and are Jurisdiction of hereby authorized to take cognisance of all complaints, suits, and prosecutions for taxes, duties, fines, penalties and forfeitures arising and payable under any of the acts passed or to be passed as aforesaid, or where bonds are given under the said acts; (b) and the Deputy district district attorneys of the United States are hereby authorized and directed to appoint by appointed. warrant an attorney as their substitute or deputy in all cases where necessary to sue or prosecute for the United States, in any of the said state or county courts within the sphere of whose jurisdiction the said district attorneys do not themselves reside or prac (a) The service of process under the United States cannot be Interrupted by the arrest of the officer, or person aiding him in serving such process, or in any other manner, by means of state process or warrants. United States v. Morris, 2 Am. L. R. 348. Opin. 482. A writ of habeas corpus may issue, under this act, to relieve an officer of the federal government, who has been imprisoned under state authority for the performance of his duty. Ex parte Robinson, 6 McLean, 355. And on the hearing of such writ, the court may go behind the return, and inquire into the sufficiency of the cause of commitment. Ex parte Jenkins, 2 Wall. Jr. 521. Ex parte Sifford, 5 Am. L. R. 659. See contrà, Thomas v. Crossin, 3 Am. L. R. 207. (b) Although congress has, in various acts, conferred the right to prosecute for offences, penalties and forfeitures, in the state scurts; the latter have, in many instances, declined the jurisdic attorney to be tion, and asserted its unconstitutionality. And there is, at the present time, a decided preponderance of judicial authority in the state courts against the authority of congress to confer the power. Commonwealth v. Feely, 1 Virg. Cas. 321. Ely v. Peck, 7 Conn. 239. United States v. Lathrop, 17 Johns. 5. United States v. Campbell, 6 Hall, L. J. 113. State v. Antonio, 3 Wh. Cr. Cas. 508. Haney v. Sharp, 1 Dana, 422. Hagan v. Dudley, 10 Law Rep. 374. Ex parte Knowles, 4 Am. L. R. 598. United States v. Smith. 1 South. 33. And see Martin v. Hunter's Lessee, 1 Wh. 330. Hous ton v. Moore, 5 Ibid. 68. But whilst a difference of opinion still exists on the point, in different states, whether state magistrates are bound to act under such authority, there can be no doubt, that they may, if they choose, exercise that authority, unless pro hibited by state legislation Prigg v. Pennsylvania, 16 Pet. 622. 3 March 1815. tise; and the said substitute or deputy shall be sworn or affirmed to the faithful execu tion of his duty. Ibid. 2. attach without regard to the troversy. Not to be de feated by state law& Errors and appeals. 312. The jurisdiction conferred by the foregoing section shall be considered as attachJurisdiction to ing in the cases therein specified, without regard to the amount or sum in controversy, and it shall be concurrent with the jurisdiction of the district courts of the United amount in con- States; but may nevertheless be exercised in cases where the fine, penalty or forfeiture may have been incurred, or the cause of action or complaint have arisen, at a less as well as a greater distance than fifty miles from the nearest place by law established for the holding of a district court of the United States. But in all suits or prosecutions instituted by or on behalf of the United States in any state or county court, the process, proceedings, judgment and execution therein shall not be delayed, suspended or in any way barred or defeated by reason of any law of any state authorizing or directing a stay or suspension of process, proceedings, judgment or execution: Provided, That final decrees and judgments in civil actions, passed or rendered in any state court by virtue hereof, may be re-examined in the circuit court of the United States, in the same manner, and under the same limitations, as are prescribed by the 22d section of the act to establish the judicial courts of the United States, passed the 24th of September 1789. 313. The state or county courts aforesaid, and the principal or presiding judge of any Power to receive such court, shall be, and are hereby, authorized to exercise all and every power in cases applications for cognisable before them by virtue of this act, for the purpose of obtaining a mitigation or remission of any fine, penalty or forfeiture, which may be exercised by the judges of the district courts of the United States in cases brought before them by virtue of the law of the United States, passed on the 3d of March 1797, entitled “ An act to provide for mitigating or remitting the forfeitures, penalties and disabilities accruing in certain cases therein mentioned;" and in the exercise of the authority by this section given to the said state or county courts, or the principal or presiding judge as aforesaid, they shall be governed in every respect by the provisions of the law last mentioned; with this difference only, that instead of notifying the district attorneys of the United States, the said courts, or the presiding judges aforesaid, shall, before exercising said authorities, cause reasonable notice to be given to the substitute or deputy, who may have been appointed to sue or prosecute for the United States, as aforesaid, that he may have an opportunity of showing cause against the mitigation or remission of such fine, penalty or forfeiture. Ibid. 3. remission of penalties, &c. Notice. 8 March 1839 2 2. 5 Stat. 348. Duties paid under protest to credit of the treasurer. VIII. DUTIES PAID UNDER PROTEST. 314. All money paid to any collector of the customs, or to any person acting as such, for unascertained duties, or for duties paid under protest against the rate or amount of duties charged, shall be placed to the credit of the treasurer of the United States, kept be placed to the and disposed of as all other money paid for duties is required by law, or by regulation of the treasury department, to be placed to the credit of said treasurer, kept and disposed of; and shall not be held by the said collector, or person acting as such, to await any ascertainment of duties, or the result of any litigation in relation to the rate or amount of duty legally chargeable and collectable, in any case where money is so paid; but whenever it shall be shown to the satisfaction of the secretary of the treasury, that in any case of unascertained duties, or duties paid under protest, more money has been paid to the collector or person acting as such than the law requires should have been paid, it shall be his duty to draw his warrant upon the treasurer in favor of the person or persons entitled to the overpayment, directing the said treasurer to refund the same out of any money in the treasury not otherwise appropriated. (a) When to be refunded. 26 Feb. 1845 21. 5 Stat. 727. Suits may be brought against collectors for protest. 315. Nothing contained in the second section of the act entitled "An act making appropriations for the civil and diplomatic expenses of government for the year 1839," approved on the 3d 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 duties paid under money, as and for duties, under protest, (b) to any collector of the customs, or other person acting as such, in order to obtain goods, wares or merchandise, imported by him or them, or on his or their account, 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 person acting as such, to ascertain and try the legality and validity of such demand and payment 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 the second section of the act aforesaid be construed to authorize the secretary of the treasury to refund any duties paid under protest; nor shall any action be maintained against any collector to recover (a) See Sturges v. United States. 4 Am. L. R. 335. 8. C., Dev. C. C. 244. The effect of this act is, that no action can be maintained against a collector to recover back money illegally exacted for duties. Cary v. Curtis, 3 How. 236. The right to sue. however, is restored, in cases where duties are paid under protest, by act 26 February 1815; infra, 315. (b) This does not embrace unascertained duties, which are governed by the act of 1839, supra, 314. Sturges v. United States, 4 Am. L. R. 340. s. c., Dev. Č. C. 244. It, however, requires a protest to recover back the additional duty of 20 per cent. assessed by way of penalty in the 8th section of the act of 1846. Kriesler v. Morton, 2 Curt. C. C. 239. the amount of duties so paid under protest, unless the said protest was made in writing, 26 Feb. 1845. and signed by the claimant, (a) at or before the payment of said duties, setting forth Protests to be in distinctly and specifically the grounds of objection to the payment thereof.(b) writing, &c. 11 Stat. 195. lector to be con 316. On the entry of any goods, wares and merchandise imported on and after the 3 March 1857 ? 5. first day of July aforesaid, the decision of the collector of the customs at the port of importation and entry, as to their liability to duty or exemption therefrom, shall be final Decision of coland conclusive against the owner, importer, consignee, or agent of any such goods, wares clusive unless and merchandise; unless the owner, importer, consignee or agent shall, within ten days appealed from. after such entry, give notice to the collector, in writing, of his dissatisfaction with such decision, setting forth therein distinctly and specifically his grounds of objection thereto, Decision of secre‐ and shall, within thirty days after the date of such decision, appeal therefrom to the tary on appeal to secretary of the treasury, whose decision on such appeal shall be final and conclusive; suit be brought and the said goods, wares and merchandise shall be liable to duty or exempted therefrom days. accordingly, any act of congress to the contrary notwithstanding; unless suit shall be brought within thirty days after such decision for any duties that may have been paid, or may thereafter be paid, on said goods, or within thirty days after the duties shall have been paid in cases where such goods shall be in bond. D. DRAWBACK OF DUTIES. I. GENERAL PROVISIONS. be final, unless within thirty 1 Stat. 680. 317. A drawback of duties, as prescribed by law, shall be allowed and paid on all 2 March 1799 275. goods, wares or merchandise imported into the United States, (c) in respect to all such goods, wares and merchandise, [whereupon the duties shall have been paid or secured to When drawback Le paid, as within twelve calendar months after payment made or security given,] shall to be allowed. be exported to any foreign port or place other than the dominions of any foreign state immediately adjoining to the United States, (d) either from the district of original importation or from certain other districts; and all duties, drawbacks and allowances which shall be payable or allowable on any specific quantity of goods, wares or merchandise shall be deemed to apply in proportion to any greater or lesser quantity: Provided, That no goods, wares and merchandise imported, shall be entitled to a drawback Limitation. of the duties paid or to be secured thereon, unless the duties so paid or secured thereon shall amount to fifty dollars at least ;(e) nor unless they shall be exported in the original To be exported in original packcasks, cases, chests, boxes, trunks or other packages in which they were imported, withages. out diminution or change of the articles which were therein contained, at the time of importation, in quantity, quality or value, necessary or unavoidable wastage or damage only excepted. filled from the 318. Provided always, That it shall be lawful for the exporter or exporters of any Packages may be liquors in casks, coffee in casks or other packages, cocoa in casks or other packages, or same importaany unrefined sugars, to fill up the casks or packages out of other casks or packages tion. included in the same original importation, or into new casks or packages corresponding therewith, to be marked and numbered as the original casks or packages, in case the original casks or packages shall, in the opinion of the officer appointed to examine the same, be so injured as to be rendered unfit for exportation, and in no other case: Provided further, That the filling up or change of package be done under the inspection of Under an officer's inspection. a proper officer, appointed for that purpose by the collector and naval officer, (where any) of the port or place from which such liquors, coffee or unrefined sugars are intended to be exported; and the drawback on articles so filled up, or of which the packages have been changed, shall not be allowed without such inspection. in bulk. 319. And where articles are imported in bulk, they shall be exported in the packages, Goods imported if any, in which they were landed; for which purpose the officer delivering the same shall return the packages they may be put into, if any, with their marks and numbers, (a) Where no such protest is made, the duties are not illegally exacted in the legal sense of the term. Lawrence v. Caswell, 13 How, 496. The signature of the claimant to another distinct paper writing to which the protest is annexed by a wafer, not referring to the protest, nor in any manner making part of it, is not a compliance with the statute. Florio r. Peaslee, 2 Curt. C. C. 452. But the want of a protest does not bar a party's claim against the United States for overpaid duties. Beatty's Executor v. United States, Dev. C. C. 231. The retention of the goods until payment of the illegal duties is a duress, and the amount of such payment may be recovered on that ground. Sturgess v. United States, 2 Quarterly Law Journal, 32. (b) A protest, being a commercial document, need not be drawn with technical accuracy: but it must state, distinctly, every ground of objection intended to be relied on; and none other can be taken at the trial. Norcross v. Greely, 1 Curt. C. C. 114. Swanston v. Morton, Ibid. 294. Kriesler. Morton, Ibid. 413. Burgess r. Converse, 2 Ibid. 218. See Maxwell r. Griswold. 10 How. 242. A notice, at the close of a protest, that it is to apply to all future similar importations, does not dispense with the necessity of a protest, in reference to those importations. Warren e. Peaslee, 2 Curt. C. C. 231. (c) No goods can now be entered for drawback, after they are withdrawn from the custody of the officers of the customs; nor, where the duties have been paid upon merchandise entered for consumption, can such duties be refunded upon exportation without the limits of the United States: supra, 290, 299. But these provisions are still in force to a great extent, not only as regulating the exportation of goods entitled to the benefit of drawback, from the bonded warehouses, and the transportation of such goods from one district to another; but also with reference to the allowance of drawback and bounties upon certain home productions. (d) See 2 Opin. 417. (e) By act 13 May 1800 3 2. it is provided "That in case of the re-exportation from the United States of goods, wares and merchandises, imported thereinto in foreign ships or vessels, no part of the additional duty imposed by law on such goods, wares and merchandises, on account of their importation in such ships or vessels, shall be allowed to be drawback; but that the whole of the said additional duty shall be retained in manuer aforesaid, in addition to the rate per centum by this and former acts directed to be retained." 2 Stat. 83. Spirits, wines and teas. 2 March 1799. and they shall not be entitled to drawback unless exported in such packages, which shall be deemed the packages of original importation, nor unless they fully agree with the return made by the said officer; and in respect to distilled spirits, wines or teas, the certificates issued by the inspector of the revenue for such spirits, wines or teas shall be given up, and the drawback shall not be allowed on any such spirits, wines or teas as do not agree, on examination, with the certificates so given up. Ibid. 76. Notice to be made. 320. In order to entitle the exporter or exporters of any goods, wares or merchandise to the benefit of the said drawback or allowances, he or she shall, previous to putting or given to collector. lading the same on board of any ship or vessel for exportation, give twenty-four hours' notice, at least, to the collector of the district from which the same are about to be exported, of his, her or their intention to export the same, (unless in the case of distilled And entry to be spirits, when six hours' notice shall be deemed sufficient), and shall make entry in writing of the particulars thereof, and of the casks, cases, chests, boxes and other packages or parcels containing the same, or of which the same shall consist, and of their respective marks, numbers and contents, and, if imported articles, the name of the ship or vessel and master's name in which the person or persons, for or by whom, and the place or places from which they were imported, also the district into which the said goods, wares or merchandise were imported, if other than the district from which they are intended to be exported. Form of entry for drawback. 321. And the form of the said entry shall be as follows: Entry of merchandise intended to be exported by (here insert the name or names), on board of the (insert the denomination and name of the vessel), whereof (insert the name of the master) is master, for (insert the port or place to which destined), for the benefit of drawback, which were imported into the district of (insert the district of original importation), on the (insert the date of importation), by (insert the name of the importer), in the (insert the denomination and name of the vessel), from (insert the foreign port or place whence they were imported), and brought into the district on the (insert the date of the vessel's entry), in the (insert the denomination and name of the vessel and master), from (insert the port from whence they arrived). Oath to be made. make oath. 322. And in respect to the said imported articles, proof shall be made to the satisfac tion of the collector and naval officer, (where there is any naval officer) by the oath of the person or persons (including the exporter or exporters) through whose hands the said articles shall have passed, according to the best of their knowledge and belief, respecting the due importation of the said articles, according to law and in conformity to such notice of their identity, and of the payment or securing the payment of the duties thereWhen agent may upon: Provided, That if, through actual sickness or absence of the importer or other person through whose hands the said goods, wares or merchandise intended to be so exported may have passed, and not otherwise, the proof required of them, or either of them, shall and may be accepted of from their known agent, factor or the person who Goods to be in- usually transacts their business: And the said collector shall direct the surveyor, (where any) to inspect or cause to be inspected the goods, wares or merchandise so notified for exportation, and if they shall be found to correspond fully with the notice and proof concerning the same, the said collector, together with the naval officer, (if any there be) shall grant a permit for lading the same on board of the ship or vessel named in such Officer to super- notice and entry as aforesaid; which lading shall be performed under the superintend ence of the officer by whom the same shall have been so inspected; and the said exporter or exporters shall likewise make oath that the said goods, so noticed for expor tation and laden on board such ship or vessel, previous to the clearance thereof, or within ten days after such clearance, are truly intended to be exported to the place whereof notice shall have been given, and are not intended to be relanded within the spected. Permit to be granted. intend lading. United States; otherwise the said goods, wares and merchandise shall not be entitled to 2 March 1799. the benefit of drawback. 323. And the form of the direction to the surveyor of the port, (where any) or to the Form of order to inspect. officer who may inspect the said goods, and the permit for lading the said goods for exportation, shall be as follows: The surveyor will cause the articles specified in (insert the name of the person making entry), entry to be examined, and, if found to agree exactly therewith, will have them (weighed, gauged or measured, as the case may require), and then permit the same to be laden on board the (insert the denomination and name of the vessel, and the master's name), master, for (insert the port of destination), for benefit of drawback. To the surveyor of the port of· A. B., Collector. 324. And in cases where the persons making entry, as aforesaid, are the persons by Form of oath by whom the goods, wares or merchandise, intended to be exported, were originally im-importer. ported into the United States, the said entry shall, after the lading of the said goods, be verified in manner following, to wit:— I, (insert the name), do solemnly, sincerely and truly swear (or affirm) that the articles specified in the above or annexed entry were imported by me (or consigned to me, as the case may be), in the (insert the denomination and name of the vessel), whereof (insert the name) was master, from (insert the name of the port or place where from), that they were duly entered by me at the custom house of this port, and the duties paid (or secured to be paid thereon, as the case may be), that they are the same in quantity, quality, package (and value, if articles paying an ad valorem duty), as at the time of importation, necessary and unavoidable wastage or damage only excepted, and are now actually laden on board the (insert denomination and name of the vessel), whereof (insert the name) is master; and that they are truly intended to be exported by me in the said vessel, to the port of (insert the name of the port or place), and are not intended to be relanded within the limits of the United States. So help me God. 325. And the oath or affirmation to be taken by the importer, when goods are sold, When to be exto be exported by another person, shall be as follows: I, (insert the name), do solemnly, sincerely and truly swear (or affirm) that the articles specified in the above or annexed entry, as imported by (or consigned to me, as the case may be), were truly imported by or consigned to me, in the (insert denomination or name of the vessel), whereof (insert the name) is master, from (insert the port or place), that they were duly entered by me at the custom house of· and the duties thereon paid (or secured to be paid, as the case may be), that they were the same in quantity, quality, package, necessary or unavoidable wastage or damage only excepted, (and value, if articles paying an ad valorem duty), at the time of sale or delivery to (insert the name of the person or persons to whom sold or destined), as at the time of importation. So help me God. ported by another person. 326. And the oath or affirmation to be taken, where goods are exported by a person, Oath of such ex other than the importer, shall be as follows: porter. I, (insert the name), do solemnly, sincerely and truly swear (or affirm) that the articles specified in the above or annexed entry were purchased by me of (insert the name of the person or persons from whom purchased), that they are now actually laden on board of the (insert the denomination and name of the vessel), whereof (insert the name) is master, and were at the time of such lading, and are now, the same in quantity, quality, package, necessary or unavoidable wastage or damage only excepted, (and value, if articles paying an ad valorem duty), as at the time of purchase; that they are truly intended to be exported by me in the said vessel, to the port of (insert the name of the port or place), and are not intended to be relanded within the limits of the United States. So help me God. 327. And the oath or affirmation to be taken by any other person than the importer Oath of interme or exporter of merchandise, who may have bought and sold the same, or in whose possession the same may have been, shall be as follows: I, (insert the name), do solemnly, sincerely and truly swear (or affirm) that the articles of merchandise, specified in this entry, were purchased by me from (insert the name of the person from whom purchased), and were sold by me to (insert the name of the person to whom sold), and that they were not, to the best of my knowledge or belief, altered, or in any respect changed, in quantity, quality, value or package, necessary or unavoidable wastage or damage only excepted, while in my possession, or from the time of said purchase until the time of said sale. So help me God. 328. For all goods, wares or merchandise, entitled to drawback, which shall be exported from the district into which they were originally imported, the exporter or diate owner Ibid. § 80. |