Lacombe, J.,
(orally.) The question of prospective protests is common to many of these entries. If this were a question simply of a consideration of the decision in Brune v. Marriott, 9 How. 619, and of the act of 1845, I should have very little difficulty in dealing with it. The decision in the Marriott Case is very carefully guarded by the court. It is restricted to the facts before it. The court expressly says in the opinion that the amount is very small; that there was a common understanding between the collector and the importer that these protests were good generally; and that the money paid for duty had not been covered into the treasury. I should not consider that decision as sufficiently authoritative to require the ingrafting upon the act of 1845 of the doctrine of prospective protests. I do not see that that act contemplated any such method of protest. But. it is undoubtedly the fact that, by a gradual process of accretion which has gone on for many years, each decision going further than the one before it, the weight of authority in this circuit is, undoubtedly, in favor of a liberal construction of these protests; and that, of course, is controlling upon us here. The only qualification in this circuit to which my attention has been called is the case of Baxter v. Maxwell, 4 Blatchf. 32. In that caso, as I understand it, subsequent to the service of the prospective protest, there were served, as to different importations, specific protests, stating other and different grounds from those named in the prospective protests, and not reiterating the grounds therein stated. The court held that in such cases the importer was to be restricted to the specific ground which his protest alleged with regard to that importation; and that the fact that he had failed to reiterate the old ground, and stood, as to that importation, upon the new grounds, would be sufficient to warrant the collector in assuming that from and after the service of this amended protest, as we might call it, that is, the new statement of his grounds, he intended to rely only upon the grounds then given. The facts in this case are not parallel with that cited; because, from the beginning of these protests to the end of them (certainly from protest No. 6, the first prospective protest, down to the close) the importers always served, with each of these protests this same mousselirte delaine protest. Sometimes it is accompanied with other protests, and with the prospective clause, and sometimes it is not; but he never makes any protest at all without reiterating the mousseline delaine protest. He has not, therefore, as to that, shifted his ground, as the importer did in the Baxter Case; and, therefore, in my judgment, is not within the rule lliore laid down. I feel constrained, therefore, by the decisions in this circuit, to rule that the prospective protests are good as covering subsequent importations.
There is here no general prospective protest. There are a number of specific protests with a general clause attached to them. In order to obtain any vitality at all they must, of course, have been properly served as specific protests; otherwise they would have no force at all, and would not operate as prospective protests. For instance, if the money was paid on January 2d, and on January 4th a protest was made as against that importation, that protest would not be good as to that im[344]*344portation, nor would I be inclined to extend the doctrine of prospective protests so as to hold its prospective clause good as to any other importation. But if a prospective protest, with a general clause at the end, is properly served, and is in proper form, and may be regarded as a specific protest, the clause would then become operative as a general protest, prospective in its effect, and covering future importations. With that understanding we may proceed to an examination of these various items.
It is true that the importer has to do three things: he has to show that the rate of duty was excessive; that the duties were ¡«id in order to obtain possession of the goods; and that a protest, in writing, signed by him, distinctly and specifically setting forth the grounds of his objection, was served at or before the payment of the duties. Concededla the duties are excessive; and that question is out of the case.
The next question is as to the payment in order to get possession of the goods. Now, the law in force at that time required that duties should be paid in cash; and also required that the duties should be paid before the goods were delivered. In the case therefore of all these entries where the original amount of duty.paid was computed at the rate of 24 per cent., and where it appears that, as matter of fact, the duty was paid before the goods were delivered, it must be assumed that the duty was paid to obtain possession of the goods. The law requires that the duty should be paid first. The law forbade the delivery of the goods without payment of the duty. If the duty were in fact paid before the goods were delivered, it is a proper assumption that it was paid to obtain possession of the goods. With regard to those cases where there were amended entries, where, subsequent to the first payment, there has been an increase of duty, and the increased amount paid, it appears in each case, except in those which have'been disclaimed, that the duty was in fact paid before the packages which were sent to the appraiser’s stores for examination were delivered. The condition there was this. The law required that duties should be paid before the goods were delivered. The goods which had been delivered to the merchant prior to the examination and increase of duty, were delivered under the 10-day bond, which obligated the importer, (as I understand its form, and I think one is in evidence; if not, the form appears from the regulations,) to return the goods upon call, if that call was made within 10 days. In view of that fact I am clearly of the opinion that the duties which were paid before the delivery of the last packages of goods were paid to obtain possession of the goods within the meaning of the statute.
The only question then left is as to the protest; that is, as to its form, as to its service (meaning the method of service) and as to the time of service. As to the form of these printed protests, and notably of the first so-called prospective protest No. 6, where one protest is pasted to another, with the signature at the foot of the composite document thus constructed, I am of the opinion that in view of the decisions as to the rules which should be applied in the construction of these protests, which are prepared by business men,, and in the hurry of business, that the protest is sufficient; that the prospective clause covers everything that [345]*345is in it from the beginning to the end; and that, therefore, so far as mere form is concerned, the first prospective protest put in will cover all the subsequent importations. On the question of form, there only remain the first five of these protests. I think that Nos. 1, 2, and 5 are sufficient in form, in view of the decisions which have been cited oil the argument, because they indicate to what particular pari of the tariff act the importer appealed for a rectification of the amount of duties exacted from him. As to Nos. 3 and 4, I am not satisfied that they do, with any sufficient degree of clearness, or that they do at all, indicate upon what clause it was that the importer relied as securing him the 19 per cent. duty.
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Lacombe, J.,
(orally.) The question of prospective protests is common to many of these entries. If this were a question simply of a consideration of the decision in Brune v. Marriott, 9 How. 619, and of the act of 1845, I should have very little difficulty in dealing with it. The decision in the Marriott Case is very carefully guarded by the court. It is restricted to the facts before it. The court expressly says in the opinion that the amount is very small; that there was a common understanding between the collector and the importer that these protests were good generally; and that the money paid for duty had not been covered into the treasury. I should not consider that decision as sufficiently authoritative to require the ingrafting upon the act of 1845 of the doctrine of prospective protests. I do not see that that act contemplated any such method of protest. But. it is undoubtedly the fact that, by a gradual process of accretion which has gone on for many years, each decision going further than the one before it, the weight of authority in this circuit is, undoubtedly, in favor of a liberal construction of these protests; and that, of course, is controlling upon us here. The only qualification in this circuit to which my attention has been called is the case of Baxter v. Maxwell, 4 Blatchf. 32. In that caso, as I understand it, subsequent to the service of the prospective protest, there were served, as to different importations, specific protests, stating other and different grounds from those named in the prospective protests, and not reiterating the grounds therein stated. The court held that in such cases the importer was to be restricted to the specific ground which his protest alleged with regard to that importation; and that the fact that he had failed to reiterate the old ground, and stood, as to that importation, upon the new grounds, would be sufficient to warrant the collector in assuming that from and after the service of this amended protest, as we might call it, that is, the new statement of his grounds, he intended to rely only upon the grounds then given. The facts in this case are not parallel with that cited; because, from the beginning of these protests to the end of them (certainly from protest No. 6, the first prospective protest, down to the close) the importers always served, with each of these protests this same mousselirte delaine protest. Sometimes it is accompanied with other protests, and with the prospective clause, and sometimes it is not; but he never makes any protest at all without reiterating the mousseline delaine protest. He has not, therefore, as to that, shifted his ground, as the importer did in the Baxter Case; and, therefore, in my judgment, is not within the rule lliore laid down. I feel constrained, therefore, by the decisions in this circuit, to rule that the prospective protests are good as covering subsequent importations.
There is here no general prospective protest. There are a number of specific protests with a general clause attached to them. In order to obtain any vitality at all they must, of course, have been properly served as specific protests; otherwise they would have no force at all, and would not operate as prospective protests. For instance, if the money was paid on January 2d, and on January 4th a protest was made as against that importation, that protest would not be good as to that im[344]*344portation, nor would I be inclined to extend the doctrine of prospective protests so as to hold its prospective clause good as to any other importation. But if a prospective protest, with a general clause at the end, is properly served, and is in proper form, and may be regarded as a specific protest, the clause would then become operative as a general protest, prospective in its effect, and covering future importations. With that understanding we may proceed to an examination of these various items.
It is true that the importer has to do three things: he has to show that the rate of duty was excessive; that the duties were ¡«id in order to obtain possession of the goods; and that a protest, in writing, signed by him, distinctly and specifically setting forth the grounds of his objection, was served at or before the payment of the duties. Concededla the duties are excessive; and that question is out of the case.
The next question is as to the payment in order to get possession of the goods. Now, the law in force at that time required that duties should be paid in cash; and also required that the duties should be paid before the goods were delivered. In the case therefore of all these entries where the original amount of duty.paid was computed at the rate of 24 per cent., and where it appears that, as matter of fact, the duty was paid before the goods were delivered, it must be assumed that the duty was paid to obtain possession of the goods. The law requires that the duty should be paid first. The law forbade the delivery of the goods without payment of the duty. If the duty were in fact paid before the goods were delivered, it is a proper assumption that it was paid to obtain possession of the goods. With regard to those cases where there were amended entries, where, subsequent to the first payment, there has been an increase of duty, and the increased amount paid, it appears in each case, except in those which have'been disclaimed, that the duty was in fact paid before the packages which were sent to the appraiser’s stores for examination were delivered. The condition there was this. The law required that duties should be paid before the goods were delivered. The goods which had been delivered to the merchant prior to the examination and increase of duty, were delivered under the 10-day bond, which obligated the importer, (as I understand its form, and I think one is in evidence; if not, the form appears from the regulations,) to return the goods upon call, if that call was made within 10 days. In view of that fact I am clearly of the opinion that the duties which were paid before the delivery of the last packages of goods were paid to obtain possession of the goods within the meaning of the statute.
The only question then left is as to the protest; that is, as to its form, as to its service (meaning the method of service) and as to the time of service. As to the form of these printed protests, and notably of the first so-called prospective protest No. 6, where one protest is pasted to another, with the signature at the foot of the composite document thus constructed, I am of the opinion that in view of the decisions as to the rules which should be applied in the construction of these protests, which are prepared by business men,, and in the hurry of business, that the protest is sufficient; that the prospective clause covers everything that [345]*345is in it from the beginning to the end; and that, therefore, so far as mere form is concerned, the first prospective protest put in will cover all the subsequent importations. On the question of form, there only remain the first five of these protests. I think that Nos. 1, 2, and 5 are sufficient in form, in view of the decisions which have been cited oil the argument, because they indicate to what particular pari of the tariff act the importer appealed for a rectification of the amount of duties exacted from him. As to Nos. 3 and 4, I am not satisfied that they do, with any sufficient degree of clearness, or that they do at all, indicate upon what clause it was that the importer relied as securing him the 19 per cent. duty. It will not do for an importer to say “my goods are subject to the 19 per cent, clause,” or the 10 per cent, clause, or are on the free list; but he must indicíate in what part of that clause they are designated. He need not do so by an enumeration of the particular section, or by any technical wording; but he must do so, in his protest, in language so plain that there will be no difficulty in finding whereabouts it is that he supposes that the exemption, or the reduction of duty, is provided for. Therefore, as to Nos. 3 and 4, I shall direct a verdict for the defendant, on the ground of the insufficiency of the form of protest.
The next question is as to the service of protest, as to its method of service. The regulations and the statute are alike silent as to who shall bo served. That being so, inasmuch as it is a protest against ihe action of the collector, we may assume that it should bo served upon him, or upon such person as might properly take his place for the purpose of service. In the absence of anything controlling, either in the statute or in the regulations, it would be for the collector, within reasonable limits, to determine in what way the protest should be served. Of course it would not be expected that the collector should himself receive all these notices, unless he chose to do so. lie might delegate any one to receive them. They might be served upon the collector personally, or they might bo served upon such deputy, clerk, or officer in the department as ho might have designal.od to receive them. They might he served by depositing them in such receptacle in the department as he might have designated as the place where they should be put. Where a particular method of serving protests against exactions of duties generally had been in force, and recognized by the department for a considerable time past, it is to be assumed that service made in that way is sufficient until some change, promulgated by authority of the collector, is announced. Now, while there is, no official order made by the collector in evidence, si ill there is evidence here of a custom, method, or usage in which, for a considerable period of time anterior to the date of these transactions, and. as I understand it, anterior to the promulgation of the regulations of 1857, these protests were served; namely, by passing them in with the entry. In the absence of any proof of promulgation by the collector, of an order making some alteration in that method of service, I shall hold that it is a sufficient method, so far as the manner of service is concerned. The regulations which have been put in evidence may, oí course, control the collector, but they cannot control the [346]*346importer as to the manner in which he shall prepare these notices. For instance, a provision that he shall not write a protest on.the entry, or a provision that he shall write it on a separate piece of paper, and not fasten it to the entry, or any regulation of that kind, might he binding upon the collector, and perhaps upon the other officers of the government so as to justify them in refusing to consider the protest, or to make a refund. But, whenever the importer goes into court, if he shows that he served the protest which the statute called for, a written protest signed by himself, setting forth distinctly and specifically the grounds of his objection, and served it on the collector, or on such person as might properly be considered the alter ego of the collector for the purpose of receiving the notice, he has complied with all the requirements which the law calls upon him to comply with.
With these views as to the form, and the manner and time of service, there is but little left in this case. The service of the first prospective protest, No. 6, is proved as fully and completely as I suppose it is ever possible, after the lapse of a generation to prove any particular transaction. The proof offered by the plaintiffs furnishes a strong presumptive case in favor of the service of the protest; and the proof from the records of the department that such protest was recorded when received, and stands of record as of a certain date, is abundant to establish the fact that it was served on the collector, or on the proper party authorized to receive it, and that it -was served in time. From and after the service of that protest, therefore, all questions as to the form of protest, or as to the manner of service, or as to the date of service, require no further consideration. The doctrine of prospective protest, as laid down in this circuit, is sufficient to cover all the subsequent importations.
Number 5, the entry by the Morning-Star, stands in precisely the same position. That protest is also recorded in the books of the customhouse. The fact of its recording, and that it is recorded there, and that the date of its recording there is sufficient in point of time, is sufficiently established to warrant the holding of the sufficiency of the protest in point of time.
Numbers 3 and 4 are disposed of in the other branch of the case, and there then remain only Nos. 1 and 2. As to these protests I have more doubt upon the question as to whether or not I should send it to the jury to determine whether thejr were served in time. But, in view of all the evidence in the case, in view of the fact that they come here in waiting, on the face of the entry, a method of protest which, under the statute, the importer was entitled to adopt if he chose to do so, and in view of proof of the fact that from the time that the entry goes to the cashier, at or about the time of the payment of duties, it passes out of the custody of the merchant and remains in the custody of the custom-house, except so far as he may from time to time be able to look at it in the presence of the custom-house officers, I have arrived at the conclusion,—in the absence of any evidence except the presumptions, or inferences to be drawn from these protest books, and from the fact that the instrument was not recorded there,;—that there is sufficient [347]*347proof here which is practically uncontradicted to warrant the court in taking it from the jury, and in drawing the inference that the protests in regard to the entries Nos. 1 and 2 were served in proper time.
1 therefore deny the several motions of the defendant, except the one as to Nos. 3 and 4; directing a verdict for the defendant for Nos. 3 and 4, on the grounds stated; and direct a verdict for the plaintiffs as to the others.