Swanston v. Morton

23 F. Cas. 516, 1 Curt. 294

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: October 15, 1852
• Status: Published

Opinion

CURTIS, Circuit Justice.

The act of February 26; 1845 (5 Stat. 727), contains the provision: “Nor shall any action be maintained against any collector, to recover the amount of duties so paid under protest, unless the said protest was made in writing, and signed by the claimant, at or before the payment of the said duties, setting forth, distinctly and specifically, the grounds of objection to the payment thereof.” This is an important provision of law, and must be carefully construed, so as to secure the practical advantages to the government which it was designed to secure, and at the same time to embarrass as little as possible the transaction of this species of business. The protest must declare what is objected to, and what are the grounds upon which the objection is rested. I should not permit any ground, not distinctly and specifically set forth in the protest, to be relied on at the trial. Here, however, it is not alleged that the protest does not sufficiently state the ground of objection; but the defect alleged is in the description of the thing objected to. It is urged that the action is to recover back money paid as additional duties; but the thing objected- to in the protest was a penalty. It is true the tariff act denominates it additional duty; but it clearly air-pears, from the circumstances under which it was to be levied, that it was an additional duty, by way of penalty, for not declaring the true value. And if it were necessary to decide upon the strictly technical term appropriate to such a demand, I am by no means clear that it would not be the word penalty. But it is not necessary to go to this length. These protests are commercial documents; and though they must be certain and distinct, they need not conform to any technical rule. If this protest, taken in connection with the other contents of the paper on which it is written, and to which it refers, makes known what was protested against, it satisfies the statute in this particular. That it does make this known, no reasonable man can doubt. It protests against payment of “the penalty of twenty per cent.;” and the same paper calls the additional duty a penalty in the place where it is computed. It was under the name of penalty that the collector exacted the money, and by that name it was proper to call it in the protest. It is clear, it .was against this payment of the additional twenty per cent., called by the officer of the customs, who computed and demanded it, a penalty, that the protest is directed. I bold it to be sufficient.