also held that the court of claims had jurisdiction of a suit for such proceeds when the application to the secretary of the treasury and the bringing of the suit therefor, both of them, occurred more than six years after the sale for the non-payment of the tax.

The present case differs from the Taylor Case only in this, that the land was in this case bought in by the tax commissioners for the United States, and no money was paid on the sale. It was so bought in for a sum which exceeded by $929.50 the tax, penalty, interest, and costs. This was done under the authority of section 7 of the act of June 7, 1862, as amended by the act of February 6, 1863, c. 21, (12 St. 640,) which authorized the commissioners to bid off for the United States land sold for the tax, at a sum not exceeding two-thirds. of its assessed value, unless some person should bid a higher sum, and also provided that at a sale any land which might be selected, under the direction of the president, for government use, might be bid in by the commissioners, under the direction of the president, for and struck off to the United States. The land in the present case having been "struck off for" and "bid in" for the United States at the sum of $1,100, we are of opinion that the surplus of that sum, beyond the $170.50 tax, penalty, interest, and costs, must be regarded as being in the treasury of the United States, under the provisions of section 36 of the act of 1861, for the use of the owner, in like manner as if it were the surplus of purchase money received by the United States from a third person on a sale of the land to such person for the non-payment of the tax. It was unnecessary to go through any form of paying money out of the treasury to any officer and then paying it in again to be held for the owner of the land. But, so far as such owner is concerned, the surplus money is set aside as his as fully as if it had come from a third person. If a third person had bid $1,099 in this case, there would have been a surplus of $928.50 paid into the treasury and held for the owner. It can make no difference that the United States acquired the property by bidding one dollar more. To withhold the surplus from the owner would be to violate the fifth amendment to the constitution, and deprive him of his property without due process of law or take his property for public use without just compensation. If he affirms the propriety of selling or taking more than enough of his land to pay the tax and penalty and interest and costs, and applies for the surplus money, he must receive at least that.

The appellants rely very much on the provisions of section 12 of the act of 1862, which require that one-half of the proceeds of subsequent leases and sales of land struck off to the United States at a sale for the non-payment of the tax, shall be, under certain circumstances, paid to the state in which the land lies; and contend that those provisions apply to the land in this case bought in under the act of 1863. The view urged is that if the United States pays to the appellee the $929.50, and to the state one-half of the proceeds of subsequent leases

and sales of the land, they will pay out more than the surplus of the proceeds of the original sale. It is not necessary to determine whether section 12 of the act of 1862 applies to the land in this case, even if it would be proper to do so in a case where the state is not represented, as a claimant to the proceeds of leases and sales. No question as to the disposition of such proceeds can properly affect the right of the appellee to this surplus money. His claim is to the surplus money arising on the original sale and not to any proceeds of any dealing with the land by the United States afterwards.

The application made to the secretary of the treasury for the surplus not having been complied with, the appellee was entitled to bring this suit, as on an implied contract to pay over the surplus. It not having been paid to the trustees under the will, or to the life-tenant, the appellee, as remainder-man, is clearly entitled to it. The judgment of the court of claims is affirmed.

(110 U. S. 97)

HILTON and another v. MERRITT, Collector, etc., of the Port of New

York.

(Filed January 14, 1884.)

CUSTOMS DUTIES - APPRAISAL RIGHT OF APPEAL DENIED-DUE PROCESS OF LAW-AMENDED REPORT.

Under the statutes of the United States, the appraisal of imported merchandise by the custom officers is final, and cannot be reviewed in action at law, unless impeached on the ground of fraud.

The denial of the right to bring an action for the recovery of duties paid under an excessive valuation does not deprive the importer of his property without due process of law.

The general appraiser is at liberty to amend his report after it has been presented to the collector.

Bartlett v. Kane, 16 How. 263, approved.

In Error to the Circuit Court of the United States for the Southern District of New York.

This was a suit brought by the plaintiffs in error, who were plaintiffs in the circuit court, to recover the sum of $1,037.40, an alleged excess of duties exacted by the defendant as collector of customs at the port of New York, on two cases of kid gloves imported by plaintiffs from Paris, France, in the steamer Mosel, in June, 1878. The complaint alleged that the plaintiffs made due protest at the time of paying such excessive duties, and made due and timely appeal to the secretary of the treasury, who affirmed the decision of defendant by which said duties were exacted. The answer denied that the duties exacted were excessive, and averred that they were according to the

rule imposed by law. The case was tried by a jury, who, after hearing the evidence, returned, by direction of the court, a verdict for defendant, upon which judgment for costs was entered in his favor. To reverse that judgment this writ of error is prosecuted.

H. E. Tremaine, for plaintiffs in error.

Sol. Gen. Phillips, for defendant in error.

WOODS, J. It appears from the bill of exceptions found in the record that the withdrawal entry of the packages on which the duty occasioning this controversy arose was made October 23, 1878. The local appraiser made and reported to the collector his appraisement of the goods. The importers being dissatisfied therewith, demanded a reappraisement according to law, which was allowed, and a merchant appraiser appointed to be associated with one of the general appraisers. The merchant appraiser made an appraisement of the standard gloves at 42 francs per dozen, and of the invoice at 16,613.10 francs, which corresponded with the importer's invoice and entered valuation of the merchandise in question. The general appraiser made a report of his appraisement on the same day, in which he put the value of the standard gloves at 52 francs, and the total valuation at 20,282.85 francs. Upon receiving these and other appraisements, the collector wrote to the general appraiser a letter dated October 10, 1878, in which he said:

"I have received the reports on the reappraisement of gloves entered by Wilmerding, Hoguet & Co., per S. S. Lessing; Iselin, Neeser & Co., per S. S. Pereire; and A. T. Stewart & Co., per S. S. Mosel, together with a mass of testimony taken at the hearing, and a special report from yourself, giving in extenso your reasons for differing from the merchant appraisers in these cases. The merchant appraisers sustain the invoices or entered value, while you advance the value in two of the cases upwards of 20 per cent. The law requires the collector, in cases of difference, to decide between the merchant and general appraiser. I find that it has been the almost universal practice for the collector, under these circumstances, to adopt the higher valuation. Unwilling to accept this easy method of disposing of troublesome questions, and believing it to be the duty of a government officer, while carefully protecting the revenue, to see that no injustice is done to the merchant, I have personally devoted much time and attention to the examination of the evidence presented.

"It is a matter of surprise that three discreet' merchants should differ so widely from the general appraiser. With no disposition to evade the responsibility placed upon me by the law, I consider that the interests involved and the vexatious delays in reaching a satisfactory conclusion require that an effort should be made to fix a value which will remain unchallenged. I have therefore to suggest that you re-examine the evidence, in the hope that a result may be reached which shall not, on the one hand, make it appear that the merchants of New York cannot be relied upon to give a fair hearing and correct judgment on a question of value, or, on the other hand, that the government seeks and enforces, by its might, that which is unjust. I would call your attention to the conflicting evidence as to the similarity of the glove marketed in London and New York. I would also call your attention to the amount to be added per button to represent the true value. I find it difficult, from the evidence, to fix this amount at five francs per dozen. The three reports are returned herewith."

To this letter the general appraiser replied, by letter of the same date, stating, among other things, as follows:

"As to the invoices under consideration I do not feel at liberty to formally withdraw the reports I have already presented, because they were founded on the evidence received on the reappraisements, and I think it best that they should stand as expressing my convictions based on that evidence. If, however, you are willing to retain them as memoranda for that purpose, and will accept as substitutes therefor the additional reports which I present herewith, and have designated as 'amended' reports, I shall feel that I have met, to the best of my ability, the considerations which your letter sets forth."

The amended report of the general appraiser fixed the value of the merchandise in question in this case at 49 francs. The collector on October 23, 1878, assessed the duty, 50 per cent. ad valorem, on the merchandise, based on a valuation of the standard glove at 49 francs, adopting the appraisment returned in the amended report of the general appraiser, that being an advance of the invoice value of 16.2 per cent., and imposed an additional duty of 20 per cent. ad valorem on account of undervaluation in the entry. The importers, the plaintiffs in error, duly protested against the action of the collector and, under protest, paid the duties assessed, and appealed to the secretary of the treasury, who, on November 11, 1878, approved the decision of the collector, holding, however, that the correctness of the valuation was not a matter subject to appeal. Upon the trial of the case the plaintiffs offered in evidence the record of the proceedings before the merchant appraiser and the general appraiser, including the testimony and various documents before those officers, and subsequently before the collector. They also offered the testimony of one Hildreth, an expert, and others, to show the foreign market value of gloves at the principal markets of France, whence the merchandise in question was imported. They also offered the testimony of the collector to show all the facts within his knowledge, or officially acted upon by him, in relation to the invoice in question, and to show what his experience was in valuing kid gloves. They also offered to prove the cost of the manufacture of goods similar to those in question. All the evidence so offered was excluded by the court, and the plaintiffs excepted.

It also appears from the bill of exceptions that the plaintiffs' counsel claimed the right to go to the jury upon the questions: (1) whether the collecter, acting as appraiser, fully and fairly examined the goods; (2) whether the goods were invoiced at their fair and actual value in the principal markets of France at the time of the exportation; (3) whether a fair examination of the goods was made by the general appraiser, associated with the merchant appraiser, when that matter was referred to him; (4) whether the facts stated in the protests to the appraisers had been established by the evidence; and (5) whether the appraisers followed the evidence before them or disregarded it, and whether the collector disregarded the evidence or was negligent

in his appraisal. The plaintiffs also asked the court to charge the jury that if the collector did not fully and fairly examine the goods, then the verdict need not necessarily follow the appraisement; and that, the general appraiser not having re-examined the goods after he made his first report, the jury was not concluded by his report at 49 francs, or the collector's action thereon. The court refused to submit the questions aforesaid to the jury or to charge the jury as requested, and the plaintiffs excepted. The bill of exceptions further states that no claim was made to submit to the jury any question of fraud on the part of the collector or appraiser, and that no claim was made during the trial that any excluded evidence was offered for the purpose of showing, or did show or tried to show, fraud on the part of the government officers.

The question presented by the exceptions of plaintiffs is whether the valuation of merchandise made by the custom officers under the statutes of the United States, for the purpose of levying duties thereon, is, in the absence of frand on the part of the officers, conclusive on the importer, or whether it is reviewable in an action at law brought by the importer to recover back duties paid under protest. The solution of this question depends upon the provisions of the acts of congress regulating the subject, which are as follows:

Section 2900 declares, in substance, that the owner, etc., of any merchandise, may, when he shall produce the original invoice to the collector, and make and verify his written entry, and not afterwards make such addition to the cost or value given in the invoice as shall raise the same to the actual market value at the time of importation in the principal markets of the country from which the same has been imported, and the collector shall cause such actual market value to be appraised, and if such appraised value shall exceed by 10 per centum or more the value declared in the entry, then there shall be collected in addition to the duties imposed by law, a duty of 20 per cent. ad valorem on such appraised value.

Section 2902 declares that "it shall be the duty of the appraisers of the United States, and every of them, and every person who shall act as such appraiser, or of the collector and naval officer, as the case may be, by all reasonable ways and means in his or their power, to ascertain, estimate, and appraise the true and actual market value and wholesale price, any invoice or affidavit thereto to the contrary notwithstanding, of the merchandise at the time of exportation, and in the principal markets of the country whence the same has been imported into the United States, and the number of such yards, parcels or quantities, and such actual market value or wholesale price of every of them, as the case may require.'

Section 2906 provides that "when an ad valorem rate of duty is imposed on any imported merchandise, or when the duty imposed shall be regulated by or directed to be estimated or based upon the value of the square yard, or of any specified quantity or parcel of