TANEY, Circuit Justice.
The facts of this case are these: In the month of January, 1849, Messrs. Pinto & Co., of Bolivia, shipped from the port of Arica, in Peru, a quantity of bark, grown in Bolivia, but known under the name of Peruvian bark. These shippers had, in the years 1845 and 1846, contracted with the Bolivian government for a monopoly in the trade of this article, for the term of several years, for which they were to pay the government a certain price. One of these contracts states that “Tabla Calisaya bark, which is cut from the body of the tree, being of three times the value of Canato bark, which is cut from the branches, and this by reason of the greater quantity of the salts, the active principle, contained therein.” The bark, thus procured, is sent to .Tacna, and thence usually to Arica, a port in Peru, from which port it is shipped abroad; from this port are also sent quantities of this bark, which are obtained clandestinely, and brought to Arica; sometimes this bark is shipped from a Bolivian port, but this much increases its cost at the port of shipment.
The bark in question was, by Pinto & Co., dispatched from Arica, in the ship San Josef, destined for Baltimore, to the plaintiff, residing in New York; and he consigned it to Messrs. Birckhead & Pearce, of Baltimore, by whom it was here entered at the customhouse, in the month of September 1849. In the invoices accompanying this shipment, the first quality, or Tabla Calisaya, was invoiced at $70 per quintal.
About a month before the arrival of the San Josef at Baltimore, another invoice of bark had arrived in Baltimore, in the barque George and Henry, to different consignees, which had left the port of Arica, about two months after the date of the bill of lading of the cargo in question, and there was evidence that a rise, throughout the whole of 1849, had taken place in the price of this kind of. bark in the ports of South America. The first quality of bark received by the George and Henry was invoiced, some at eighty cents and some at ninety. On the arrival of the plaintiffs’ cargo, Messrs. Birck-head & Pearce entered it in the usual way, and samples of it were submitted to the appraisers for examination; neither of the appraisers was a good judge of the value of this article, but directed it to be subjected to a chemical analysis, by the government chemist, and having subjected the bark of the other shipment to a like process, they found the cargo by the San Josef, which was invoiced at $70 per quintal, to contain more sulphate of quinine than the bark received by the George and Henry, which was invoiced, at a much higher price, this sulphate of quinine being the active principle of the bark. To this test the appraisers felt themselves bound to subject this bark, in consequence of the orders of the treasury circular of the 2d day of November 1848, in these words:
Copy 1.
Treasury Department, November 2, 1848.
Sir: I have to acknowledge receipt of your communication of the 21st ult., with the report of the U. S. appraisers, in relation to an importation by Messrs. Birckhead & Pearce, of Baltimore, per barque “George and Henry,” from Arica. It appears from the documents submitted, that the valuation of the article in question, was predicated by the appraisers on the quantity of sulphate of quinine produced by the several packages in the invoice; a portion of the same, invoiced at $65, found, on analysis by Dr. Stewart, the special examiner, to produce 2 24/100 per cent of quinine, being taken as the basis of the value of the others (with-certain exceptions), which, by the analysis, produced an equal proportion of quinine.
It being the opinion of this department, that the course pursued by the U. S. appraisers was the true one, under the circumstances, and is sustained by law, you are directed to estimate and adjust the duties accordingly.
Very respectfully, &e.,
K. J. Walker, Secretary of Treasury.
William H. Marriott, Collector of Customs,. Baltimore.
After calling for the bill of lading, which, was sent to them, the appraisers determined, that the duty upon the bark should be so increased, that it became liable to the additional or penal duty of twenty per cent., and made to the collector the following report:
[974]*974Appraisers’ Office,
Baltimore, October 3, 1849.
The undersigned report to the naval officer an addition to E. Bartlett, of New York’s, invoice of bark, per barque St. Joseph, from Arica, entered by Birckhead & Pearce, on 21st ult., viz:
J. T. P. 454 seroons bark, weighing 681 quintals at $10 9S.is $7204 98
J'. P., 26 ditto, ditto. 89
quintals, $14 82.62.....578 22
$7783 20
Commissions 2% par cent. 194 58
Peruvian currency.$7977 78@92cts. $7889 66
Duty 15 percent.$1100 92
M. McBlair.
E. Bartlett, New York, per St. Joseph, entered by Birckhead & Pearce, 494 seroons bark:
■681 quintals, at 70 cts., is.$47,670 00
•Commissions 23^ per cent. 1,191 75
$48,861 75
The 13 seroons bark, per George and Henry, which cost 80 cents per pound, produced 2 76/100 per cent, of quinine.
The above bark, per St. Joseph, is invoiced at 70 cents, and produced 2 78/100 quinine
per cent., and consequently—
•Ought to have been invoiced.80 58
70
Difference.'.10 5S
If this addition be made, it will stand as follows:
681 quintals at 10 58-100 per quintal, is_$7204 98
■Commissions2>^ percent. 180 12
$7885 10
J. P., 26 seroons, invoiced at 53 cents, produced 2 34/100 per cent, of quinine. In proportion to the above, it ought to be valued, viz:
•89 quintals, at $14 82.63, is.$578 22
234 per cent, commissions. 14 16
$592 68
$7977 78 at 92, is $7339 56, U. S. currency.
Duty, 15 per cent., is $1100 92.
Peruvian currency.$7977 78
On the 4th October, the collector notified Messrs. Birckhead & Pearce of this decision; they, on the next day, asked to be furnished with the grounds of such decision, and on the Gth October, protested in writing against it and asked that the case should be submitted to merchant appraisers, as required by law. On the same day, and after such request of Birckhead & Pearce, the appraisers wrote to Messrs. Birckhead & Pearce this letter:
Appraisers’ Office,
Port Baltimore, 6th Oct, 1849.
Gentlemen: In relation to your appeal, in the case of Mr. E. Bartlett’s importation of bark, per barque St.
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TANEY, Circuit Justice.
The facts of this case are these: In the month of January, 1849, Messrs. Pinto & Co., of Bolivia, shipped from the port of Arica, in Peru, a quantity of bark, grown in Bolivia, but known under the name of Peruvian bark. These shippers had, in the years 1845 and 1846, contracted with the Bolivian government for a monopoly in the trade of this article, for the term of several years, for which they were to pay the government a certain price. One of these contracts states that “Tabla Calisaya bark, which is cut from the body of the tree, being of three times the value of Canato bark, which is cut from the branches, and this by reason of the greater quantity of the salts, the active principle, contained therein.” The bark, thus procured, is sent to .Tacna, and thence usually to Arica, a port in Peru, from which port it is shipped abroad; from this port are also sent quantities of this bark, which are obtained clandestinely, and brought to Arica; sometimes this bark is shipped from a Bolivian port, but this much increases its cost at the port of shipment.
The bark in question was, by Pinto & Co., dispatched from Arica, in the ship San Josef, destined for Baltimore, to the plaintiff, residing in New York; and he consigned it to Messrs. Birckhead & Pearce, of Baltimore, by whom it was here entered at the customhouse, in the month of September 1849. In the invoices accompanying this shipment, the first quality, or Tabla Calisaya, was invoiced at $70 per quintal.
About a month before the arrival of the San Josef at Baltimore, another invoice of bark had arrived in Baltimore, in the barque George and Henry, to different consignees, which had left the port of Arica, about two months after the date of the bill of lading of the cargo in question, and there was evidence that a rise, throughout the whole of 1849, had taken place in the price of this kind of. bark in the ports of South America. The first quality of bark received by the George and Henry was invoiced, some at eighty cents and some at ninety. On the arrival of the plaintiffs’ cargo, Messrs. Birck-head & Pearce entered it in the usual way, and samples of it were submitted to the appraisers for examination; neither of the appraisers was a good judge of the value of this article, but directed it to be subjected to a chemical analysis, by the government chemist, and having subjected the bark of the other shipment to a like process, they found the cargo by the San Josef, which was invoiced at $70 per quintal, to contain more sulphate of quinine than the bark received by the George and Henry, which was invoiced, at a much higher price, this sulphate of quinine being the active principle of the bark. To this test the appraisers felt themselves bound to subject this bark, in consequence of the orders of the treasury circular of the 2d day of November 1848, in these words:
Copy 1.
Treasury Department, November 2, 1848.
Sir: I have to acknowledge receipt of your communication of the 21st ult., with the report of the U. S. appraisers, in relation to an importation by Messrs. Birckhead & Pearce, of Baltimore, per barque “George and Henry,” from Arica. It appears from the documents submitted, that the valuation of the article in question, was predicated by the appraisers on the quantity of sulphate of quinine produced by the several packages in the invoice; a portion of the same, invoiced at $65, found, on analysis by Dr. Stewart, the special examiner, to produce 2 24/100 per cent of quinine, being taken as the basis of the value of the others (with-certain exceptions), which, by the analysis, produced an equal proportion of quinine.
It being the opinion of this department, that the course pursued by the U. S. appraisers was the true one, under the circumstances, and is sustained by law, you are directed to estimate and adjust the duties accordingly.
Very respectfully, &e.,
K. J. Walker, Secretary of Treasury.
William H. Marriott, Collector of Customs,. Baltimore.
After calling for the bill of lading, which, was sent to them, the appraisers determined, that the duty upon the bark should be so increased, that it became liable to the additional or penal duty of twenty per cent., and made to the collector the following report:
[974]*974Appraisers’ Office,
Baltimore, October 3, 1849.
The undersigned report to the naval officer an addition to E. Bartlett, of New York’s, invoice of bark, per barque St. Joseph, from Arica, entered by Birckhead & Pearce, on 21st ult., viz:
J. T. P. 454 seroons bark, weighing 681 quintals at $10 9S.is $7204 98
J'. P., 26 ditto, ditto. 89
quintals, $14 82.62.....578 22
$7783 20
Commissions 2% par cent. 194 58
Peruvian currency.$7977 78@92cts. $7889 66
Duty 15 percent.$1100 92
M. McBlair.
E. Bartlett, New York, per St. Joseph, entered by Birckhead & Pearce, 494 seroons bark:
■681 quintals, at 70 cts., is.$47,670 00
•Commissions 23^ per cent. 1,191 75
$48,861 75
The 13 seroons bark, per George and Henry, which cost 80 cents per pound, produced 2 76/100 per cent, of quinine.
The above bark, per St. Joseph, is invoiced at 70 cents, and produced 2 78/100 quinine
per cent., and consequently—
•Ought to have been invoiced.80 58
70
Difference.'.10 5S
If this addition be made, it will stand as follows:
681 quintals at 10 58-100 per quintal, is_$7204 98
■Commissions2>^ percent. 180 12
$7885 10
J. P., 26 seroons, invoiced at 53 cents, produced 2 34/100 per cent, of quinine. In proportion to the above, it ought to be valued, viz:
•89 quintals, at $14 82.63, is.$578 22
234 per cent, commissions. 14 16
$592 68
$7977 78 at 92, is $7339 56, U. S. currency.
Duty, 15 per cent., is $1100 92.
Peruvian currency.$7977 78
On the 4th October, the collector notified Messrs. Birckhead & Pearce of this decision; they, on the next day, asked to be furnished with the grounds of such decision, and on the Gth October, protested in writing against it and asked that the case should be submitted to merchant appraisers, as required by law. On the same day, and after such request of Birckhead & Pearce, the appraisers wrote to Messrs. Birckhead & Pearce this letter:
Appraisers’ Office,
Port Baltimore, 6th Oct, 1849.
Gentlemen: In relation to your appeal, in the case of Mr. E. Bartlett’s importation of bark, per barque St. Joseph, from Arica, we beg leave respectfully to notify you, that we require of this gentleman the production of all correspondence and letters and accounts in his possession relative thereto, and that he shall make a deposition before the collector of New York, that the papers he sends are all the documents he has received relating to this shipment.
Very respectfully, M. McB.,
H. W. E.
Messrs. Birckhead & Pearce.
The appraisers now state, that this letter was written to enable them to ascertain if they had committed any error or mistake in their opinion, and to enable them to review and correct the same, if erroneous.
On the 11th October, Mr. Birckhead de-declined to furnish the papers asked by the appraisers, in their letter of the 6th, directed the appeal to the merchant appraisers to be withdrawn, proposed to pay the additional duty, except the twenty per cent., as assessed by the appraisers, and if this were declined, instructed Birckhead & Pearce to pay the duties under protest. This is the letter:
New York, 11 October, 1849.
Messrs. Birckhead & Pearce, Baltimore.
Dear Sirs: I have yours of 9th and 10th instant. I return the debenture certificate endorsed. In looking more carefully to the requisition of your appraisers of bark, per St. Joseph, I find that I shall have to have copied and translated a mass of correspondence from January last, when it was shipped, to August; for reference is made to it in all ■my letters from Pinto & Co. and Alsop & Co., in order the more fully to explain Pinto & Co.’s mode of invoicing the bark. I shall have to present a series of documents, commencing in 1847, with their contract with the ■Bolivian government, proving its actual cost to be about $60 per quintal; all these are necessary to make out my own case, and I am unwilling to present anything less than all the documents. I do not see, however, what use they can be of, at present, to the appraisers, who have made up their valuation of the bark and made a return to the collector. I shall, therefore, defer the presentation of my documents for another tribunal, and, not to lose more time in delivering the bark to thé purchasers, I wish you to inform the collector that, by my instructions, your appeal is withdrawn; and that you are prepared to pay, under protest, whatever duties may be exacted on the bark. You will then please send to me in bond what has been so directed, and deliver the remainder, as already ordered. At leisure, we can then test the question of this exaction.
The appraisers have been misinformed of the value of bark at Arica, in January last; after the large sales I made here in March and April were known, it never rose there above seventy-five to eighty cents, and if any small parcels were, at any time, smuggled to the coast and sold at that, or even a higher price, it was no guide to its value.
[975]*975If a resort to the courts can be avoided, by having the valuation fixed at a rate not imposing the additional duty of twenty per ■cent., I shall be glad, for I have no disposition to engage in a law-suit. My immediate want, however, is the bark, and I will take my chance of having justice done, by paying all that is now asked, under protest. You ■can draw on me, at sight, for what funds may be required. I credit you $111 03, for proceeds of C. Keener’s draft of $114 96.
Yours, Edwin Bartlett.
Some further correspondence occurred, in all of which the appraisers insisted upon the correctness of their views, and adhered to their original opinion. Some part of the cargo by the San Josef was entered for consumption, and some for exportation. Mr. Bartlett being desirous of having the latter portion trans-shipped to New.York, the collector before he would permit this to be done, insisted upon receiving all the duties thereon, including the twenty per cent, additional, which was also paid under protest. The papers called for by the appraisers in their letter of the 6th October, have not been furnished, even upon the trial.
The counsel for the plaintiff contends:
1. That the invoice valuation of the goods is deemed the true value until evidence be •offered to show this valuation to be erroneous.
2. That the only method of correcting this valuation is by showing a valid appraisement according to law.
3. That the appraisement, in this case, was not a valid one.
4. That the refusal of the said plaintiff to furnish the papers called for by the appraisers did not affect his interest, but that the appraisement was erroneous.
5. That having exported some of this bark, he is entitled to the debenture upon such exportation, including the twenty per cent, he paid as a penal infliction, for an attempt to defraud the revenue laws of the United States.
The first proposition may be conceded to the plaintiff, and the question occurs, was the appraisement in this case a valid one? I do not think the secretary of the treasury had the power of fixing a chemical analysis of bark, as the only test of its dutiable value, in the manner he attempted to do, in his circular of 2d November 1848; although the contract of Pinto & Co., regards this as one method of determining the relative values of bark. The law of congress fixes the duties upon the market value at the port of exportation; and this can certainly not mean that a purchaser of this commodity shall, when he goes to buy, carry with him a chemist to fix the exact quantity of sulphate •of quinine contained in the thing purchased; but he must, and can only look at the fair market value of the article among those trading in it at the place of exportation; he can only be required to adopt the methods usually adopted by merchants In making purchases. Still, the appraisers, when they suspect a wrong done to the government, have a right to employ this means as a test, by which, with the other knowledge and information in their power, and to be procured by them, they may be enabled to arrive at a correct estimate of the true value of the article imported. Here, too, when the appraisers, having seen the two articles, are unable to form a judgment with regard to their value, they had a right to resort to this mode of ascertainment, and with this information before them, they could legitimately come to the conclusions they have reached.
But, supposing I am wrong upon this subject, the party by withdrawing his appeal, and refusing to produce the papers called for, has fixed the correctness of the appraisement. The appraisers certainly had the right to call for these papers, whether with the view of correcting their own judgment, if erroneous, or of laying them before the merchant appraisers, in the event of a prosecution of the appeal.
To refuse to produce papers, admitted to be in a party’s possession, always raises the strongest inference that those papers, if produced, would operate against the person holding them. In government claims, this refusal almost amounts to evidence of fraud. The act of congress makes it, in such a case as this, conclusive proof that the papers, when produced, would be demonstrative against the pretensions of the party having them in his possession. The act makes no restriction as to the time when these papers may be called for; it does not designate who shall make the demand, and I see no reason why the demand made in this case was not properly made, and by the proper officers.
The next question then is, to what amount of debenture is the party entitled in this case, upon the bark which he had exported? Here there is an increase made by the appraisers of about fifteen per cent, upon the invoice value of the cargo. The consequence of this appraisement is, that a penal exaction of twenty per cent, is imposed upon this cargo, by way of punishment for the attempt upon the revenue laws of the country. Here are two distinct things, one is an ascertainment of actual value, the other the penal consequence flowing from this ascertainment of real value; the first fixes the actual value upon which, if the party had entered the goods at the price so fixed, the duty would have been paid; it fixes the value 'of the goods on which the ad valorem duty is to be charged; this duty is affected by the increase or decrease of such value. But the second is quite another affair; if the appraisers fix the increased value at $11 25, or fifty per cent, over the invoice, the same twenty per cent, can be charged; the one fluctuates according to the judgment of [976]*976the appraisers, they have the right of determining what it shall'be; the other is a fixed and settled per-centage established by the act of congress.
[NOTE. Upon appeal the supreme court affirmed the judgment, upon the grounds, with others, that the appraisers had power to require the production, on oath, of all letters, accounts, or invoices relating to the goods imported; that the direction of the chemical examination, though perhaps improper, did not destroy the validity of the appraisement; that the importer having appealed, from its appraisement on withdrawal of the appeal, and refusal to furnish the letters called for, the appraisement stood good; and that the importer was not entitled to the 20 per cent, additional duty assessed under Act July 30, 1846, § 8, (9 Stat. 43,) as a drawback upon re-exportation. Bartlett v. Kane, 16 How. (57 U. S.) 263.]
If upon this twenty per cent, assessment, a party would have a right to claim a debenture, the party offering might defeat this provision by an exportation of the articles in regard to which he had offended. I, therefore, think that the plaintiff is not entitled to any drawback upon the exportation of this bark, beyond the duty which would accrue if the goods had been entered at the price fixed by the appraisers as their true value.
Verdict for defendant.