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SCHELL'S EXECUTORS V. FAUCHE, 138 U. S. 562 (1891)

U.S. Supreme Court

Schell's Executors v. Fauche, 138 U.S. 562 (1891)

Schell's Executors v. Fauche

No. 690

Argued January 28, 1891

Decided March 2, 1891

138 U.S. 562


It appearing that at the date of the transactions in controversy, more than thirty years ago, it was the custom for importers to pass in protests with the entries, the Court may presume that the usual course was pursued in respect of a protest produced under subpoena at the trial from the proper repository, where it had been lying for a long time, and that it was made and served at its date, and before the payment of duties.

Two papers attached together by a wafer and signed on the bottom of the lower one, which when read together make a protest against two exactions of duties, are to be treated as a unit.

Page 138 U. S. 563

A protest against the exaction of duties is sufficient if it indicates to an intelligent man the ground of the importer's objection to the duty levied upon the articles, and it should not be discarded because of the brevity with which the objection is stated.

When such a protest is in proper form and attached to the invoice, the omission of date is immaterial.

The failure of a collector of customs to conform to a Treasury regulation requiring him to record protests ought not to prejudice the rights of the importer.

A protest, otherwise valid and correct in form, against an exaction of excessive duties upon an importation of goods, which concludes "you are hereby notified that we desire and intend this protest to apply to all future similar importations made by us," having been long and consistently held by the court below to be a sufficient and valid protest against prospective importations, so that that doctrine has become the settled law of that court, and the general practice prevailing in the port of New York, this Court accepts it as the settled law of this Court.

In all cases of ambiguity, the contemporaneous construction not only of the courts but of the departments, and even of the officials whose duty it is to carry the law into effect, is controlling.

This was a consolidation of six actions originally begun between September 1, 1857, and March 1, 1860, in the state courts of New York, and removed to the circuit court of the United States. The actions were brought against the collector of customs for the port of New York to recover back duties alleged to have been illegally exacted upon certain importations of mousselines de laine made by the co-partnership of which the defendants in error are the survivors. The consolidated suit was tried in October, 1887, and a verdict found for the plaintiffs under the direction of the court for $450,563.44. Judgment having been entered against the executors of Augustus Schell, deceased, late collector of the port, a writ of error was sued out from this Court. The real question at issue was whether mousselines de laine were under the Act of March 3, 1857, 11 Stat. 192, subject to a duty of 19 or 24 percent. That question, however, was excluded from this case under a stipulation

"by and between the respective parties to this action that mousselines de laine, composed of worsted, or worsted with a satin stripe, were, under the tariff acts of 1857, subject to a duty of 19 percent as claimed by the plaintiffs."

As the duty exacted and paid was 24 percent, judgment was

Page 138 U. S. 564

rendered for the difference, and the only questions argued by counsel in this Court arose upon the admissibility of testimony and the form, sufficiency, and service of protests accompanying the several entries of merchandise, which are set forth and considered in the opinion of the court.

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