requiring that officer to allow the redemption. | inquiry as to fraud in the appraisement, and may several purchasers at the sheriff's sale. We are of opinion that, construing the statute so as to give effect to the object for which it was enacted, a court of equity should refuse aid to a party, asserting under it a right of redemption, who has neglected, at least without sufficient cause, before the expiration of six months from the confirmation of the sale, to invoke the authority of the proper court or judge to compel the recognition of such right by the officer whose duty it was, under the statute, to accept a tender made in conformity with law. If, as suggested, this remedy is cumulative only, that fact only diminishes the right of the plaintiff to relief; for he not only neglected to avail himself of this specific remedy, but failed to invoke, in due time, the gene[50] ral authority of a court of equity. The interpretation we give to the statute is supported by the principle upon which courts of equity uniformly proceed, independently of any Statute of Limitations, of refusing relief to those who unreasonably delay to invoke their aid. Richards v. Mackall, 124 U. S. 183, 187 [31: 396, 8991. To avoid misapprehension, it is proper to observe that what we have said has reference only to cases arising under the Civil Practice Act of 1873. The present case is unaffected by the Act of the Territorial Legislature, approved February 3, 1886, permitting the judgment debtor, or his successor in interest, to redeem any real estate sold under execution of judgment or foreclosure of mortgage, at any time within one year from the date of sale, by paying the amount of the purchase money, with interest at the rate of 1 per centum per month thercon from the date of sale, together with the amount of any taxes the purchaser may have paid. The decree is affirmed. [39] ALGERNON S. BADGER, Collector of the Port of NEW ORLEANS, Piff. in Err., v. A. CUSIMANO & COMPANY, a Commer- States for the Eastern District of Louisiana, ERROR to the Circuit Court of the United to review a judgment in favor of plaintiff in an The facts are stated in the opinion. Mr. Wm. A. Maury, Assist. Atty-Gen., Fraud apart, the appraisement is conclusive. Chicago Tyre & Spring Co. v. Spaulding, 116 Substantial compliance with the law (R. S. Oelbermann v. Merritt, 123 U. S. 367 (31: 168). Messrs. Chas. B. Singleton and Richard H. Mr. Justice Harlan delivered the opinion [40] of the court: This is an action for the recovery of the sum of $1,400.07, with interest, being the amount of certain duties which, it is alleged, were illegally exacted from the defendants in error. The case was tried by the court pursuant to a stipulation between the parties waiving the intervention of a jury. The court found "the issues of fact raised by the pleadings in favor of the plaintiffs." We must assume, therefore, that the facts were as alleged by the plaintiffs in their pleadings. It is alleged in the petition and amended petition that the plaintiffs were importers of and dealers in foreign fruits at New Orleans; that, in December, 1883, and January, 1884, they imported several cargoes of Valencia oranges on the steamships Pontiac, Norfolk, North Anglia, Vindolano, and Ehrenfels, aggregating 21,165 cases, each case being over 24 cubic feet; that the invoice value of the oranges was 177,310 pesetas, while the invoice value of the packing, bands, cost of transportation, etc.) charges (composed of value of cases, nails, was 120,990 pesetas, making the total invoice value of fruit and charges 298,300 pesetas; that the fruit as it arrived was duly entered in the Customs Department at New Orleans, the fruit at its true invoice value, which was its true market value at the date of the respective (See S. C. Reporter's ed. 39-43.) importations, and the charges at their true invoice value; that, nevertheless, the collector, Duties on imports-oranges-illegal exaction. without pretending that there was any mistake or fraud in the invoice value of the fruit, caused 1. Under section 7 of the Act of March 3, 1883, an appraisement of each importation to be chap. 121, 22 Stat. at L. 488, 523, the value of the charges specified in sections 2907, 2008, Revised Stat- made, despite the protest and remonstrance of utes, including the value of the boxes used in the petitioners, and thereby increased the invoice transportation of goods imported from other coun-value of the fruit, and reduced the invoice tries, is to be excluded from the estimate of the value of the charges in each, increasing the value of the fruit by just so many pesetas as the invoice value of the charges was reduced, and making a total increase of 36,271.15 pesetas in the value of the fruit, equal to $7,000.33 in American coin, upon which petitioners were obliged to pay 20 per cent duty, or $1,400,07; that as soon as the liquidations of each and all 55 amount of duties collectible upon such goods. 851 [41] [42] of the entries were made by the Customs Department, and within thirty days thereafter, the petitioners appealed from the decision of the collector to the Secretary of the Treasury; that the Secretary, on the 18th of February, 1885, decided that it appeared that the "fruit in question was invoiced at a value which properly rep: resented its market value, but that the value of the boxes, packing, etc., was excessive, and was reduced by the appraiser, and the value of the fruit advanced to the same extent," and affirmed the decision of the collector; that one of the merchant appraisers appointed by the collector knew nothing of the value of Valencia oranges or of the charges thereon, and so admitted; that none of the oranges, nor any samples thereof, were submitted to or examined by the merchant appraisers, which facts were specifically set forth in plaintiffs' protest, filed with the collector, against the appraisement; and that all the subsequent appraisements of shipments, other than the shipment by The Pontiac, were based upon the above merchant appraisement, and an appeal to the Secretary of the Treasury was refused, on the ground that such appraisement was binding. The effect of section 7 of the Act of March 3, 1883, c. 121, 22 Stat. at L. 488, 523, was to exclude from the estimate of the amount of duties collectible upon goods imported from other countries, the value of the "charges" specified in sections 2907 and 2908 of the Revised Statutes, including the value of the usual and necessary sacks, crates, boxes, or covering of any kind, not composed of materials or made in any form designed to evade duties thereon, but used in the bona fide transportation of such goods to the United States. The duties, therefore, for which the plaintiffs were liable in respect to the oranges they imported, were to be ascertained with reference only to their true and actual market value. Oberteuffer v. Robertson, 116 U. S. 499, 509, 510 [29:706, 709]. That the collector made a reduction of the invoice value of the charges is of no consequence, because such charges were not dutiable items. He did what the law did not authorize him to do, namely: increased the dutiable value of the oranges, although they were invoiced and entered at their true market value. The additional duties exacted from the plaintiffs on this increased value amounted to the sum for which the judgment was rendered. It is insisted, however, that this question can not arise upon the present writ of error. The only bill of exceptions taken in the case states, "that on the trial of the cause the plaintiffs offered evidence tending to show that the value fixed on goods imported by them was excessive, and that the appraisement of said goods was erroneous; to the reception of which evi dence defendant objected, on the ground that said goods were duly appraised, and that the appraisement is final and conclusive in the absence of fraud, which is not alleged, and on the further ground that such evidence is not admissible under the allegations of plaintiffs' petition, which objections were overruled by the court, and said evidence received, to wit: on ground, because, in the opinion of the court, it is not necessary to allege fraud." The contention of the Government is that as fraud was not specifically alleged in respect to the appraisement, the court erred in admitting and considering evidence to impeach it. This position is supposed to be sustained by the case of Hilton v. Merritt, 110 U. S. 97, 108 [28:83, 86]. In that case it was said: "Considering the Acts of Congress as establishing a system, and giving force to all the sections, its plain and [43] obvious meaning is that the appraisement of the customs officers shall be final; but all other questions relating to the rate and amount of duties may, after the importer has taken the prescrib ed steps, be reviewed in an action at law to recover duties unlawfully exacted." Again: "The valuation made by the customs officers was not open to question in an action at law as long as the officers acted without fraud and within the power conferred on them by the statute." In the case before us there is no impeachment of the appraisement, so far as it states the value of the charges or the value of the goods, as increased by the amount of the reduction made from the value of the charges. The only inquiry is whether the collector acted within the power conferred upon him by statute when he required the importers to pay duties, not only upon the actual market value of the goods, but upon such additional value as was equal to the reduction made from the value of the cases covering the goods. These are questions of law simply, involving the power of the collector under the statute. They are entirely apart from any inquiry as to fraud in appraisement, or as to the values set forth in it, and may be raised by the importer in an action at law, when he has taken such steps as entitle him to bring suit for the recovery of duties illegally exacted from him. This ruling is entirely consistent with the decision in Hilton v. Merritt. Judgment affirmed. UNITED STATES, Appt., ข. MALBONE F. WATSON. (See S. C. Reporter's ed. 80-82.) Longevity pay to army officer. The time of the service of a cadet in the Military Academy at West Point is to be regarded as part of the time he served in the army, within the meaning of the Act of July 5, 1838, and should be counted, in computing his longevity pay under that Act; and he is entitled to receive so much of the amount Statute of Limitations. thereon thus computed as is not barred by the [No. 369.] Submitted Jan. 4, 1889. Decided March 11, 1889. APPEAL from a judgment of the Court of pay. Affirmed. Claims, in favor of claimant for longevity The facts are stated in the opinion. Messrs. A. H. Garland, Atty-Gen., R. A. Howard, Assist. Atty-Gen., and F. P. Dewees, Assist. Atty., for the United States, appellant. Messrs. R. B. Warden and W. W. Warden for appellee. Mr. Justice Lamar delivered the opinios of the court: On the 24th of February, 1886, the appellee, [80] [81] Malbone F. Watson, filed his petition in the | 613], in which a question almost identical with Claimant entered the United States Military Academy as a cadet, July 1, 1856; was appointed a second lieutenant of cavalry, May 6, 1861; first lieutenant of artillery, May 14, 1861; captain, March 9, 1866; retired from active service for loss of his right leg from wound received in line of duty, September 18, 1868. In computing his service for longevity pay he claims to be entitled to count his time as a cadet under the Acts of July 5, 1838, 5 Stat. at L. 256; March 2, 1867, 9, 14 Stat. at L. 423; July 15, 1870, R. S. 1262. By so crediting his service, claimant alleges there is due him up to the time of filing his petition the sum of $2,611.10. To this petition the United States filed a general demurrer, which was sustained as to that part of the claim accruing six years before the filing of the petition, and overruled as to the rest of it, without prejudice. The court thereupon rendered judgment in favor of claimant for $126.22. The United States appealed. The ground upon which this judgment rests is, that the time of the service of claimant as a cadet in the Military Academy at West Point is to be regarded as a part of the time he served in the army within the meaning of the Act of July 5, 1838, and should be counted in computing his longevity pay under that Act; and that he is entitled to receive so much of the amount thereon thus computed as is not barred by the Statute of Limitations. the one now before us was presented for consideration. In that case, Morton, the claimant, had entered the United States Military Academy at West Point as a cadet, July 1, 1865, had graduated therefrom June 15, 1869, and had served in the army as a commissioned officer from that date until March 31, 1883. In computing his service pay the accounting officers did not allow him credit for the time he had been a cadet at West Point as part of his time of service in the army; and he accordingly brought suit in the Court of Claims under the Acts of February 24, 1881, and June 30, 1882, 21 Stat. at L. 346, and 22 Stat. at L. 118, respectively. These Acts, among other things, provided that "Additional pay to officers for length of service, to be paid with their current monthly pay, and the actual time of service in the army or navy, or both, shall be allowed all officers in computing their pay." The Court of Claims rendered judgment in favor of the claimant, which, on an appeal prosecuted on behalf of the United States, was affirmed by this court. In the opinion of the court it was stated that "The only question for decision is whether the time of service as a cadet is to be regarded as 'actual time of service in the army.'” The court, after an elaborate examination and discussion of the laws bearing thereon and having relation thereto, answered that question in the affirmative, and said: "From this review of the statutes, it cannot The provisions of the Acts of Congress, re-be doubted that, before the passage of the Act Sec. 15, Act of July 5, 1838: "Every commissioned officer of the line or staff, exclusive of general officers, shall be entitled to receive one additional ration per diem for every five years he may have served or shall serve in the army of the United States: Provided, That in certain cases where officers are entitled to and receive double rations, the additional one allowed in this section shall not be included in the number to be doubled." Sec. 9, Act of March 2, 1867: "That section 15 of the 'Act to increase the present military establishment of the United States, and for other purposes,' approved July 5, 1838, be amended so that general officers shall not hereafter be excluded from receiving the additional ration for every five years' service; and it is hereby further provided that officers on the retired list of the army shall have the same allowance of additional rations for every five years' service as officers in active service.' of July 28, 1866 (now § 1094, R. S., which in so many words classes the cadets at West Point as a part of the army of the United States), as well as afterwards, the corps of cadets of the Military Academy was a part of the army of the United States, and a person serving as a cadet was serving in the army. . . . The practical construction of the requirement of the Act of 1838, that the cadet should engage to serve for eight years, shown by the fact that the form of the engagement in this case was to 'serve in the army of the United States for eight years,' is a circumstance of weight to show that the Government, from the beginning, treated the plaintiff as serving in the army. 1st of July, 1865, and the eight years ran from The service for which he engaged began on the that time. That being his status, the Acts of 1881 and 1882, in speaking of 'actual time of service in the army,' cover the time of his service as a cadet. ... Under the statutes involved in the present case, a cadet at West Point is serving in the army as fully as an offcer retired from active service is serving in the army, under the statutes which apply to him, so far as the question of longevity pay is concerned." not be used to support the contention of the More direct and emphatic language could claimant in this case. The words "actual time of service in the army," as used in the Act of February 24, 1881, are not more expressive of cadet service at West Point, than are the words "for every five years he may have served or shall serve in the army of the United States,' as used in the Act of July 5, 1838. They both mean the same kind of service; and we are of the opinion that such service should be reck [82] [83] [69] Note to Cooley, Torts, 458; Winchester v. Craig, 33 Mich. 205. The charge given took from the jury all the questions of fact. oned in computing longevity pay prior, as well | expenditure of money by the defendant, the THE ARKANSAS VALLEY LAND AND v. JEREMIAH J. MANN. (See S. C. Reporter's ed.69-79.) Remission of part of a verdict--when proper and effect of-granting or refusing new trial, not reviewable-sale of property-retaining possession-increase of domestic animals-damages for conversion. 1. The exaction, as a condition of refusing a new trial, that the plaintiff should remit a portion of the amount awarded by the verdict, is a matter within the discretion of the court. 2. To require a plaintiff to submit to a new trial, unless he remits a part of the verdict, does not deprive the defendant of any right, or give him any cause for complaint. Notwithstanding such remission, it is still open to him to show, in the court which tried the case, that the plaintiff was not entitled to any sum, and to insist that such errors of law were committed as entitled him to have a new trial of the whole case. 3. This court is not authorized to assume, from the mere fact that a large sum was remitted, that the court below believed that the jury were governed by prejudice, or willfully disregarded the evidence. 4. The granting or refusing a new trial in a Gircuit Court of the United States is not subject to review by this court. 5. The retention of possession of property by the sellers until, and as security for, the payment of the price, is not inconsistent with an actual sale by which title passed to the buyer. Hodges v. Easton, 106 U. S. 408 (27: 169). Thomas v. Womack, 13 Tex. 583; Nudd v. 199; George v. Law, 1 Cal. 363; Johnson v. Root, 2 Cliff. 108; Baylis v. Travelers Ins. Co. 113 Ú. S. 320 (28: 990); Loewenthal v. Streng, 90 Ill. 74. Compensatory damages were all the jury were justified in awarding under the evidence. Sampson v. Smith, 15 Mass. 367; Coffin v. Coffin, 4 Mass. 1; Baylis v. Travelers Ins. Co. 113 U. S. 320 (28: 990); Burdell v. Denig, 92 U. S. 723 (23: 767). Messrs. E. T. Wells and R. T. McNeal, for defendant in error: For the court to direct the jury by what process they were to determine an issue would have been manifest error. Standard Oil Co. v. Van Etten, 107 U. S. 334 (27: 322). Plaintiff could have maintained replevin not only for the original stock in the possession of defendant, but also for their increase. Bolles Wooden- Ware Co. v. U. S. 106 U. S. 435 (27: 231). In trespass and trover nothing short of judg ment satisfied passes title to the property. Lovejoy v. Murray, 70 U. S. 3 Wall. 1 (18: 129). follows that of the dam. Jordan v. Thomas, 31 Miss. 562-3; Buckley v. Buckley, 12 Nev. 436-39; Baker v. Wheeler, 8 Wend. 505, 24 Am. Dec. 73-85. The full value of property at conversion with interest thereon is the measure of damages in trover. Cooley, Torts, 457, note 1; Sutherland, Dam. 173-4; Note to Wooley v. Carter, 11 Am. Dec. 528, 7 N. J. L. 85; Note to Baker v. Wheeler, 24 Am. Dec. 71, 72, 8 Wend. 505. 6. In an action for conversion of cattle, the The practice of remitting a part of a judgment by the appellate court, where the excess can be ascertained from the record, has been 7. In actions for conversion of domestic animals Intended for sale and consumption, the plaintiff is Bank of Ky. v. Ashley, 27 U. S. 2 Pet. 327. And this practice very generally prevails in the appellate courts of the several States. 1 Sutherland, Dam. 811-815. Mr. Justice Harlan delivered the opinion [70] of the court: This is an action for the recovery of damages for the alleged unlawful conversion by the defendant, the Arkansas Valley Land and Cattle Company (Limited), to its own use, of certain cattle. The complaint, which is framed in conformity with the local law, contains three distinct causes of action. The first count claims seventy-one thousand dollars in damages for the unlawful conversion, at the County of Weld, Colorado, of fourteen hundred and fifty-two head of Oregon cattle, all branded on the right side or loin with what is commonly known as the bar brand, and of which seven hundred and forty-two were [71] [72] steers, alleged to be of the value of forty-four thousand five hundred and twenty dollars, and seven hundred cows, alleged to be of the valde of twenty-one thousand dollars. filed a replication controverting all the new matters set out in the answer. After a protracted trial, the jury returned a verdict in favor of the plaintiff for the sum of $39,958.33. There was a motion by the defendant for a new trial, as well as one in arrest of judgment. The second count claims eighty thousand The third count claims seventy-one thousand dollars in damages for the conversion of seven hundred head of Oregon cows and twelve bulls, of the alleged value of twenty-one thousand dollars, and fifteen hundred head of young cattle, the increase of the cows last mentioned, and of the actual value of fifty thousand dol lars. Judgment is asked upon all the counts for the sum of two hundred and twenty-one thousand dollars. There was evidence relating to a herd of about two thousand steers and cows of various ages, all branded, which the plaintiff claimed to have bought from Slagle and Jordan in October, 1880. His contention is that at the time of the purchase that herd was at or near Rock Creek Station on the Union Pacific Railroad, in the Territory of Wyoming; that under an arrangement, part of his contract of purchase, he caused to be shipped, out of this herd, to Omaha or Council Bluffs for sale at prices fixed by that contract, about six hundred head; that the remainder, about fourteen hundred in number, were driven, in the same month, to Sheep Creek Basin, about twenty miles distant from Rock Creek; that in December they fled or drifted before a severe wind and snow storm from the west and northwest, until they came to the head of Sheep Creek Basin, thence passed over the Black Hills Range, and moved in an easterly and southerly direction until they reached the ranch of one Bloomfield, in Colorado, and were by him taken possession of, without right, and sold to the defendant, a corporation of which he was general manager. There was evidence as to another herd of about 1,200 steers, marked with a T brand on the left side, and belonging to Gillespie & Co., which disappeared about the same time from the same region in Wyoming Territory. This herd, it was claimed, also found its way to Bloomfield's ranch, and were by him sold without right to the defendant. Early in the year 1884, the complainant made demand upon the defendant, through Bloomfield, as its manager, for the above cattle, including those formerly owned by Gillespie & Co., to whose rights the plaintiff had succeeded. The demand was refused upon the ground that the defendant had not received any cattle belonging to the plaintiff. The answer put in issue the plaintiff's ownership of the cattle described in the complaint, and relied also upon certain facts in bar of any recovery against the defendant. The plaintiff he declined to do so, a new trial should be granted. In accordance with this decision, the plaintiff remitted the above sum, and stipulated in writing that judgment might be entered for the sum of $17,125. The motion for new trial, and the motion in arrest of judgment, were overruled, and judgment was entered for the latter sum. To the action of the court in respect to this remission, and to the order denying the motions for new trial and in arrest of judgment, the defendant excepted. 1. The point was much pressed at the bar that the remission by the plaintiff of a part of the verdict, followed by a judgment for the sum remaining, deprived the defendant of his constitutional right to have the question of damages tried by a jury, without interference upon the part of the court, except as it became necessary to instruct them in reference to the principles of law governing the determination of that question. The precise contention is, that to make the decision of the motion for a new trial depend upon a remission of part of the verdict, is in effect a re-examination by the court, in a mode not known at the common law, of facts tried by the jury, and therefore was a violation of the Seventh Amendment of the Constitution. The counsel for the defendant admits that the views expressed by him are in conflict with the decision in Northern Pac. R. Co. v. Herbert, 116 U.S. 642, 646 [29:755, 758]; but he asks that the question be re-examined in the light of the authorities. That was an action against a railroad company for the recovery of damages resulting from the negligence of its representa tive, whereby the plaintiff sustained serious personal injury. The verdict was for $25,000, and a new trial was ordered, unless the plaintiff remitted $15,000 of the verdict. He did remit that sum, and judgment was entered for $10,000. This court said: "The exaction, as a condition of refusing a new trial, that the plaintiff should remit a portion of the amount awarded by the verdict was a matter within the discretion of the court. It held that the amount found was excessive, but that no error had been committed on the trial. In requiring the remission of what was deemed excessive, it did nothing more than require the relinquishment of so much of the damages as, in its opinion, the jury had improperly awarded. The corrected verdict could, therefore, be properly allowed to stand," citing Blunt v. Little, 3 Mason, 102, 106; Hayden v. Florence Sewing Machine Co. 54 N. Y. 221, 225; and Doyle v. Dixon, 97 Mass. 208, 213. In Blunt v. Little, which was an action for malicious civil prosecution, in which the verdict was for two thousand dollars, Mr. Justice Story, while admitting that the exercise of [73] |