BLATCHFORD, District Judge.
I see no ground for vacating the -order of .the 7th -of August, 1869. The mistake in inserting’..in the record of the verdict in the minutes -the words expunged by that order was, on .the evidence laid before the court, clearly a clerical mistake, and those words formed no part of the verdict as rendered and as understood by both parties at the time.
As to the motion to insert in the record of the verdict, as found in the minutes of the court, after the words, “and of the several subsequent dates,” the words “as modified by treasury instructions dated May 21st, 1863,” I am satisfied, on the evidence produced, that the omission of those words was a clerical mistake, and that the verdict as given contained them The then attorney for the defendant in the suit, who was the then attorney of the United States for the Southern district of New York, made a report to the collector of the port of New York, on the 31st of March, 1854, as to the particulars of the verdict, reciting it as containing the words in question. The motion is, therefore, granted.
The exceptions to the report will now be considered. . The first exception complains, that the referee has allowed amounts paid for duties on commissions, without any protest against such payment having been made at the time thereof, or at any time, and without any protest having been made except the protest attached to the entry by the Pacific, dated January 9th. 1854; and that such protest was not sufficient to warrant the recov[28]*28ery back of the payments made subsequent to such protest and without reference thereto, because it was a protest against the payment of duties on commissions on an importation of portemonnaies from Paris, and the collector received no notice that the plaintiffs desired that notice to apply to importations of various other articles not portemonnaies, imported from Great Britain subsequently, ■ihe duties on which are included in the amount reported. The defendant seeks, by this first exception, to raise and obtain a decision on the question as to the sufficiency-of the prospective protest attached to the entry by the Pacific, as a protest in this case. But I do not think that the defendant is in a position to raise any such question in this-case. The making of a proper protest in writing, at the time the alleged excessive duties were paid, was, under the statute, an indispensable .prerequisite to the right of the plaintiffs to maintain a suit to recover back such excessive duties, and the' fact that a verdict' was rendered for the plaintiffs is conclusive evidence, at this stage of the case, that proof was given at the trial that such a protest was made. The verdict finds, that the excessive duties paid by the plaintiffs were paid under protest, that is, under such a protest as the law requires. The legitimate effect of such verdict cannot be varied except by the consent of the plaintiffs. Nothing is shown which is claimed to vary -such effect, except what is found in the plaintiffs’ stipulation of January 6th, 1864. That stipulation concedes this, and no more — that if, in adjusting the verdict, the clerk-shall find the protests on which the verdict is based different from those in like cases which had been adjusted by himself, or by the custom-house, prior to the 6th of January, 1864, then, and only then, may a question be raised as to the sufficiency of the protests. It is for the defendant to show affirmatively, that the clerk, in adjusting the verdict, has found the protests on which the verdict is based to be different from those in like cases which had been adjusted by himself, or by the customhouse, prior to the 6th of January, 1864. The defendant does not show, by the report of the referee, who stands in the place of the clerk, or otherwise, that the referee had found any such fact to exist in reference to the protests on which the verdict is based. Therefore, the defendant cannot raise any question as to the sufficiency of the protests.
These views dispose, also, of the second exception, which is, that the protest attached' to the entry by the Pacific was a protest against the payment of duties on commissions exceeding two and one half per cent., and conceded that two per cent, could properly be exacted, and that the referee has allowed the plaintiffs to recover back all duties paid on commissions on importations from Great Britain which exceeded one and a half per cent. The defendant is concluded as to the sufficiency of the protests, and the referee has' strictly followed the verdict in allowing such recovery.
The third exception complains, that the referee has allowed amounts paid for duties on charges, without any protest against their payment having been made at- the time thereof, and without any protest against their payment having been made at any time, and without any protest having been made, except the protest attached to the entry by the Arctic, of the date of April 22d, 1854. The decision in regard to the first -exception applies to this ,pne, and it is overruled.
The fourth exception complains, that there was no evidence before the referee that any of the duties which the plaintiffs had paid were upon charges, above those -set forth in the report of Isaac Phillips, dated October 13th, 1856, or in his reports of subsequent dates, and that nevertheless it appears, by the report of the referee, that he has allowed to the plaintiffs various amounts, upon the theory that such amounts were excessive duties paid upon' charges, above those set forth in said reports.
The fifth exception complains, that it appears, by the evidence, that the referee has included, in the ¿mount reported by him, items of charges for inland freight in England and elsewhere, which are not above those set forth in any report of Isaac Phillips, dated October 13th, 1856, or of any subsequent date, and that, therefore, the verdict does not authorize their recovery.
The process by which the referee arrived at the amount which he has reported as due to the plaintiffs for excessive duties on charges, was to deduct the amounts which appeared, by the invoices and entries, to be the amounts of the charges for the transportation of the goods from the interior of the country by land or water carriage, incurred prior to the time of exportation, from the total amounts of costs and charges upon which duties were paid. He took, as his authority for doing so, the treasury instructions of May 21st, 1863, which contain this direction: “Collectors and others are informed that this department concurs in the decisions of the courts, that charges for transportation of goods from the interior of the country by railroad or water carriage, incurred prior to the time of exportation, cannot be added to the value of the goods, for the purpose of establishing their dutiable value.” The entries covered by the report in the present ease were made at various dates oe-tween January 7th, 1854, and June 22d, 1857. The act governing the fixing of the dutiable values of the goods embraced in those entries was the act of March 3d, 1851 (9 Stat. 629). It was decided by the circuit court for the district of California, in Gibb v. Washington [Case No. 5,380], that, under that act, charges for inland transportation were not dutiable, and it is understood that other decisions were made by courts of the United States to the same effect, prior' to [29]*29May, 1863. Forman v. Peaslee [Id. 4,941]. The instructions of May, 1863, did not prescribe any new rule, but only recognized the proper construction of the act of 1851, in respect to charges for inland transportation, to be that set forth in the ipstructlons.
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BLATCHFORD, District Judge.
I see no ground for vacating the -order of .the 7th -of August, 1869. The mistake in inserting’..in the record of the verdict in the minutes -the words expunged by that order was, on .the evidence laid before the court, clearly a clerical mistake, and those words formed no part of the verdict as rendered and as understood by both parties at the time.
As to the motion to insert in the record of the verdict, as found in the minutes of the court, after the words, “and of the several subsequent dates,” the words “as modified by treasury instructions dated May 21st, 1863,” I am satisfied, on the evidence produced, that the omission of those words was a clerical mistake, and that the verdict as given contained them The then attorney for the defendant in the suit, who was the then attorney of the United States for the Southern district of New York, made a report to the collector of the port of New York, on the 31st of March, 1854, as to the particulars of the verdict, reciting it as containing the words in question. The motion is, therefore, granted.
The exceptions to the report will now be considered. . The first exception complains, that the referee has allowed amounts paid for duties on commissions, without any protest against such payment having been made at the time thereof, or at any time, and without any protest having been made except the protest attached to the entry by the Pacific, dated January 9th. 1854; and that such protest was not sufficient to warrant the recov[28]*28ery back of the payments made subsequent to such protest and without reference thereto, because it was a protest against the payment of duties on commissions on an importation of portemonnaies from Paris, and the collector received no notice that the plaintiffs desired that notice to apply to importations of various other articles not portemonnaies, imported from Great Britain subsequently, ■ihe duties on which are included in the amount reported. The defendant seeks, by this first exception, to raise and obtain a decision on the question as to the sufficiency-of the prospective protest attached to the entry by the Pacific, as a protest in this case. But I do not think that the defendant is in a position to raise any such question in this-case. The making of a proper protest in writing, at the time the alleged excessive duties were paid, was, under the statute, an indispensable .prerequisite to the right of the plaintiffs to maintain a suit to recover back such excessive duties, and the' fact that a verdict' was rendered for the plaintiffs is conclusive evidence, at this stage of the case, that proof was given at the trial that such a protest was made. The verdict finds, that the excessive duties paid by the plaintiffs were paid under protest, that is, under such a protest as the law requires. The legitimate effect of such verdict cannot be varied except by the consent of the plaintiffs. Nothing is shown which is claimed to vary -such effect, except what is found in the plaintiffs’ stipulation of January 6th, 1864. That stipulation concedes this, and no more — that if, in adjusting the verdict, the clerk-shall find the protests on which the verdict is based different from those in like cases which had been adjusted by himself, or by the custom-house, prior to the 6th of January, 1864, then, and only then, may a question be raised as to the sufficiency of the protests. It is for the defendant to show affirmatively, that the clerk, in adjusting the verdict, has found the protests on which the verdict is based to be different from those in like cases which had been adjusted by himself, or by the customhouse, prior to the 6th of January, 1864. The defendant does not show, by the report of the referee, who stands in the place of the clerk, or otherwise, that the referee had found any such fact to exist in reference to the protests on which the verdict is based. Therefore, the defendant cannot raise any question as to the sufficiency of the protests.
These views dispose, also, of the second exception, which is, that the protest attached' to the entry by the Pacific was a protest against the payment of duties on commissions exceeding two and one half per cent., and conceded that two per cent, could properly be exacted, and that the referee has allowed the plaintiffs to recover back all duties paid on commissions on importations from Great Britain which exceeded one and a half per cent. The defendant is concluded as to the sufficiency of the protests, and the referee has' strictly followed the verdict in allowing such recovery.
The third exception complains, that the referee has allowed amounts paid for duties on charges, without any protest against their payment having been made at- the time thereof, and without any protest against their payment having been made at any time, and without any protest having been made, except the protest attached to the entry by the Arctic, of the date of April 22d, 1854. The decision in regard to the first -exception applies to this ,pne, and it is overruled.
The fourth exception complains, that there was no evidence before the referee that any of the duties which the plaintiffs had paid were upon charges, above those -set forth in the report of Isaac Phillips, dated October 13th, 1856, or in his reports of subsequent dates, and that nevertheless it appears, by the report of the referee, that he has allowed to the plaintiffs various amounts, upon the theory that such amounts were excessive duties paid upon' charges, above those set forth in said reports.
The fifth exception complains, that it appears, by the evidence, that the referee has included, in the ¿mount reported by him, items of charges for inland freight in England and elsewhere, which are not above those set forth in any report of Isaac Phillips, dated October 13th, 1856, or of any subsequent date, and that, therefore, the verdict does not authorize their recovery.
The process by which the referee arrived at the amount which he has reported as due to the plaintiffs for excessive duties on charges, was to deduct the amounts which appeared, by the invoices and entries, to be the amounts of the charges for the transportation of the goods from the interior of the country by land or water carriage, incurred prior to the time of exportation, from the total amounts of costs and charges upon which duties were paid. He took, as his authority for doing so, the treasury instructions of May 21st, 1863, which contain this direction: “Collectors and others are informed that this department concurs in the decisions of the courts, that charges for transportation of goods from the interior of the country by railroad or water carriage, incurred prior to the time of exportation, cannot be added to the value of the goods, for the purpose of establishing their dutiable value.” The entries covered by the report in the present ease were made at various dates oe-tween January 7th, 1854, and June 22d, 1857. The act governing the fixing of the dutiable values of the goods embraced in those entries was the act of March 3d, 1851 (9 Stat. 629). It was decided by the circuit court for the district of California, in Gibb v. Washington [Case No. 5,380], that, under that act, charges for inland transportation were not dutiable, and it is understood that other decisions were made by courts of the United States to the same effect, prior' to [29]*29May, 1863. Forman v. Peaslee [Id. 4,941]. The instructions of May, 1863, did not prescribe any new rule, but only recognized the proper construction of the act of 1851, in respect to charges for inland transportation, to be that set forth in the ipstructlons. The verdict in this case, as now amended, and as it must be held to have always' read, for all purposes, in saying that the refund is to be of the excess of duty paid upon charges above those set forth in the reports of Isaac Phillips, as modified by the treasury instructions of May 21st, 1863, means, that such treasury instructions are to control in respect to the charges which are to form part of the dutiable value of goods. The same instructions provide, that port charges, drayage, commissions and export duty are to be ádded, to fix the dutiable value of goods. In respect to the charges so to be added, the reports of Mr. Phillips as appraiser were necessary, and were adopted, as appears from the verdict in this case, by the government, as fixing the amounts of the charges so to be added. Such amounts were average amounts, fixed for importations from any one country, but varying. between importations from different countries. But, in respect to charges that were not to be added, and which could form no part of dutiable value, such as charges for inland transportation, the law having so declared, if any such charges are found to have been contained in the invoices and entries, and to have entered into the values on which duties were paid, "the plain method of arriving at the accurate dutiable values, is to deduct the amounts of such charges from the total amounts of the invoices and entries. This is just what the referee has done. Verdicts, in form precisely like the verdict in this case, were rendered at the same time in thirteen other cases brought for return of excessive duties paid under protest, five against this defendant, and eight against Collector Schell, one of those eight being a suit by these plaintiffs. Bach verdict was, as is seen, one for excess of duty paid upon charges generally — not merely for excess of duty paid on charges for inland transportation, which were not dutiable at all, but for excess of duty on charges dutiable in kind, where the excess was in the amount of the charges. Hence, the language of the verdicts. Where it was necessary to resort to the reports of Mr. Phillips to ascertain the proper amount of charges, such resort was to be had. Where the charges were not dutiable at all, such as charges for inland transportation, no such resort was to be had, because it was unnecessary, and because the instructions of May, 1863, reciting the law, were to control. So, also, such instructions were to control the reports of Mr. Phillips, where they covered any point as to which resort was to be had to such reports
The exceptions are all of them overruled, and" the report is confirmed, and judgment must be entered for the plaintiffs, on the verdict, for $3,078.66, with interest from July 12th, 1869.