Taylor v. Doe.

its operation. So far then as the rights of the parties to the judgment and the subject-matter to be affected by those rights were concerned, every thing was determined; all controversy was closed. The law had taken the subject entirely to itself, to be applied by its own authority and its own rules. Did the indulgence of appraisement, and the temporary suspension allowed in a certain predicament to the debtor, alter the rights or obligations of the parties, or change the status, or liability, or appropriation, of the subject which the law had already taken into its own hands? To admit of any conclusions like these, would be to open again controversies already closed, and to wrest from the fiat of the law, the subjects it had specially and absolutely applied. The privilege of appraisement and suspension was in itself a great indulgence; it would become an opprobrium to justice, if it could be converted into a means of abrogating rights which she had expressly and deliberately conferred. The appraisement and suspension wrought no change in the relative position of the parties, it neither released nor weakened the hold. taken by the law on the subject, but only completed the proceedings on the conditions which the statute had prescribed, the operation it had begun, and which it had the regular authority to fulfil. We regard the venditioni exponas in this case merely as a continuation and completion of the previous execution by which the property had been appropriated, and was still in the custody of the law, and not as a separate, independent, much less an original proceeding, the offspring or result of a distinct and farther adjudication. This interpretation is in conformity with the meaning and purpose of the process of venditioni exponas, and with the terms of that writ as provided in the statute of Mississippi, which runs in the following language, viz. (Vide How. & Hutch. Col. c. 42, sect. 18.) "We command you that you expose to sale those goods and chattels, lands and tenements of A B, to the value of which, according to our command, you have taken, and which remain in your hands unsold as you have certified to our judges, of our Court, to satisfy C D the sum of whereof in our said court he hath recovered execution against the said A B by virtue of a judgment in the said court, &c.," thus showing the consummation of the right of the plaintiff, the divestiture of possession of the defendant, and the transfer of that possession to the custody and possession of the law by the levy of the previous execution. Considering this to be the situation of the property, and regarding the force of the judgment and levy as not having been affected by the appraisement and suspension of sale, it becomes unimportant to investigate the results attempted to be deduced from the fact

Taylor v. Doe.

that the venditioni exponas was sued out after the death of the defendant Crane. According to our view this fact would have been immaterial both upon the rules of the common law and upon the provisions of the stat. of the 29 Car. 2, adopted in many of the States; for by the former the execution would have been valid if tested before the death of the defendant, and by the statute if delivered to the officer before that period; but in this instance not only did the lien which could be enforced by fieri facias exist from the date of judgment, according to the statute of Mississippi, but it was actually consummated by seizure in the lifetime of the defendant in the judgment. Upon the point of the validity of an execution against the personalty, if tested and sued in the lifetime of the debtor, numerous authorities might be cited from the English decisions and from the adjudications of the State courts, as well as the decision of this court in the case of Erwin's Lessee v. Dundas et al. in 4 How. Rep. 58, in which many of the cases have been reviewed. A particular reference to the cases upon this point, however, is not deemed important in the present instance, though it may not be altogether out of place to refer to several decisions of the Supreme Court of Mississippi ruling a doctrine which would go very far in sustaining the title of the defendants in the ejectment, admitting that the validity of the first execution and levy on the judgment against Crane was a matter regularly open for examination. Thus the cases of Smith and Montgomery v. Winston and Lawson, 2 How. Miss. Rep. 601; of Drake et al. v. Collins, 5 Id. 253; and of Harrington v. O'Reilly et al. 9 Sm. & Marsh. 216, have laid it down as the law of Mississippi in relation to real as well as personal estate, "that a sale made under an execution which issued without a revival of the judgment is not absolutely void but voidable only, and cannot be avoided collaterally."

This last quest.on this court do not feel themselves now called upon to settle; considering the levy under the first judgment against Crane and the lien thereby created as having been consummated, and the property placed by the proceedings in the custody of the law, they regard the title of the defendants below derived from the judgment, the levy of the fieri facias, and sale under the venditioni exponas, as regular and valid, and one which should have been sustained- The judgment of the District Court is therefore reversed, and the cause remanded to that court to be tried upon a venire facias de novo, in conformity with this opinion.

Order.

This cause came on to be heard on the transcript of the record from the District Court of the United States, for the North

Tremlett v. Adams.

ern District of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that this cause be, and the same is hereby, reversed, with costs; and that this cause be, and the same is hereby, remanded to the said District Court, with directions to award a venire facias de novo, and to proceed therein in conformity with the opinion of this court.

THOMAS TREMLETT, PLAINTIFF in error, v. JOSEPH T. ADAMS.

The tariff law of July 30, 1846 (9 Stat. at Large, 42.) reduced the duties on imported coal, and was to take effect on the 2d of December, 1846. The sixth sec tion provided that all goods, which might be in the public-stores on that day, should pay only the reduced duty.

On the 6th of August, 1846, (9 Stat. at Large, 53,) Congress passed the Warehous. ing Act, authorizing importers, under certain circumstances, to deposit their goods in the public stores, and to draw them out and pay the duties at any time within one year.

But this right was confined to a port of entry, unless extended, by regulation of the Secretary of the Treasury, to a port of delivery.

Therefore, where New Bedford was the port of entry, and Wareham a port of delivery, the collector of New Bedford (acting under the directions of the Secretary of the Treasury) was right in refusing coal to be entered for warehousing at Wareham.

Where an importer deposited a sum of money, as estimated duties, with the collector, which, upon adjustment, was found to exceed the true duty by a small amount, and the collector offered to pay it back, but the importer refused to receive it, the existence of this small balance is not sufficient reason for reversing the jude ment of the Circuit Court, which was in favor of the collector.

THIS case was brought up, by writ of error, from the Circuit Court for the District of Massachusetts.

It was a suit brought in the Circuit Court, by Thomas Trem lett, a merchant of Boston, against Adams, the collector of the port of New Bedford, for return of duties.

The case is stated in the bill of excentions, which was as follows:

This was an action of assumpsit, brought against the defendant, collector for the port of New Bedford, to recover the sum of twenty-two hundred and sixty-seven dollars, seventyseven cents, and interest, excess of duties upon sundry cargoes of coal, imported into the port of Wareham, in the collection district of New Bedford, by the plaintiff, and claimed to be illegally exacted by said defendant, and paid by said plaintiff under protest.

At the trial of the case before his honor, Judge Sprague, the following facts were admitted by the defendant, namely:

1st. That, in the months of September and October, 1846,

Tremlett v. Adams.

the plaintiff, Thomas Tremlett, a merchant of Boston, imported from Pictou, in Nova Scotia, into the port of Wareham, in the collection district of New Bedford, nine cargoes of coal, as follows, namely:

Amounting, in the aggregate, to 1,458, chaldrons, or 1,922 tons, 8 cwt. 1 qr. 26 lbs., as appears by the custom-house records.

These several cargoes of coal were shipped at Pictou, for the port of Wareham, a port of delivery only; and, upon the arrival at that port of the first-mentioned vessel, the brig Indus, on or about the 3d of September, 1846, the plaintiff made application at the custom-house in New Bedford, to the defendant, Joseph T. Adams, then collector at said port, to enter said coal, for warehousing, at Wareham, aforesaid, under the provisions of the act of Congress, entitled, "An act to establish a warehousing system," &c., passed August 6th, 1846. But the defendant refused to allow the plaintiff to enter said coal for warehousing, as aforesaid, under the act aforesaid, because said Wareham was not a port of entry, but a port of delivery; and required him, if he would land said coal at said Wareham, to enter the same under the act for the collection of duties, passed August 30th, 1842, and to deposit $285 to cover the duties which might be found to be legally due and payable thereon. The plaintiff, in order that said vessel might be permitted to discharge her cargo, complied with this requisition, first entering the following protest in writing:

"I protest against paying duties, wishing to warehouse the coal per brig Indus, from Pictou;" and signed "Thomas Tremlett, by his attorney, Jacob Parker."

The usual permit was then granted by the collector, to land the coal from said vessel at said Wareham, and the coal was accordingly landed; and, upon the arrival at said Wareham of the other cargoes of coal, by the several vessels above named,

Tremlett v. Adams.

said plaintiff made like applications to the defendant, at the collector's office at New Bedford, to enter each cargo for warehousing under said act of August 6th, 1846, at Wareham, aforesaid.

But the defendant, in like manner, as in the case of the brig Indus, refused permission to warehouse, as aforesaid, and required the plaintiff to make the same entry as in that case, and deposit a sum of money upon the entry of each cargo, sufficient to cover the duties which might be found to be legally due and payable thereon, under the provisions of the act of August 30th, 1842, the plaintiff first entering a protest in writing, in each case, and upon the entry of each cargo, in manner and form as in the case of the brig Indus, above mentioned; and said coal was thereupon landed, and deposited in the same manner as that per brig Indus.

2d. That all of said coal, landed at said Wareham from the above-named vessels, was deposited in one pile, and remained in the place where it was originally deposited until after December 19th, 1846.

3d. That the aggregate sum deposited with the defendant by the plaintiff, to cover the amount of duties on the several cargoes of coal above mentioned, was $3,403, and the duties on said coal, computed under the Tariff Act of August 30, 1842, would amount to $3,364.14; that by the act of July 30, 1846, the duties on the coal in question would amount to $1,135.23.

4th. That the brigs Indus and Mary Sophia were British ves sels; that it has been the invariable practice of the collectors at New Bedford, for more than twenty years, to allow foreign vessels the same rights and privileges, as to unlading and discharging their cargoes at the port of Wareham, that are granted to American vessels, and that no objection was made or intimated by the defendant to the plain.iff to his landing the cargoes of said "Indus" and "Mary Sophia" at said Wareham.

5th. That said Wareham is the principal port, in the collection district of New Bedford, where coal is imported for consumption.

6th. That the defendant, on or before the 19th of December, 1846, delivered to the plaintiff's attorney a statement of the balance due to the plaintiff for money deposited, over and above the amount of duties claimed on the nine cargoes of coal aforesaid, amounting to $38.86, and offered then to pay the same to M. Parker, the plaintiff's attorney, which he declined to receive; and that on the 13th of November, 1849, Mr. Adams, the defendant, tendered the same amount in specie to Thomas Tremlett, the plaintiff, at his office in Boston, which he refused to receive, and informed the defendant that in 1846 he instructed Mr. Parker, his attorney, not to receive it.